Exhibit 10.jjj




 


 


 


 


 


 


 


 


CINERGY CORP. EXCESS PROFIT
SHARING PLAN


 


(Effective as of January 1, 2003)


 


 


 


 


 

















(Note:  This Table of Contents is not part of the
Cinergy Corp. Excess Profit Sharing Plan; instead, this Table of Contents is
merely for convenience of reference.)


 


 


TABLE OF CONTENTS


 


 


	
  ARTICLE I

  	
  NATURE AND PURPOSE
  OF PLAN

  	
   

  
	
   

  	
   

  	
   

  
	
  1.1

  	
  Type of Plan

  	
   

  
	
  1.2

  	
  Purpose of Plan

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  II

  	
  DEFINITIONS
  AND RULES OF CONSTRUCTION

  	
   

  
	
   

  	
   

  	
   

  
	
  2.1

  	
  Definitions

  	
   

  
	
  2.2

  	
  Rules of Construction

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
  ELIGIBILITY
  AND PARTICIPATION

  	
   

  
	
   

  	
   

  	
   

  
	
  3.1

  	
  Eligibility

  	
   

  
	
  3.2

  	
  Employer Profit
  Sharing Contributions

  	
   

  
	
  3.3

  	
  Cessation of Participation

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
  PARTICIPANTS’ ACCOUNTS

  	
   

  
	
   

  	
   

  	
   

  
	
  4.1

  	
  Establishment of Account

  	
   

  
	
  4.2

  	
  Earnings and Losses

  	
   

  
	
  4.3

  	
  Credits to Account

  	
   

  
	
  4.4

  	
  Accounts Unfunded

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
  DISTRIBUTION OF
  BENEFITS

  	
   

  
	
   

  	
   

  	
   

  
	
  5.1

  	
  General Distribution Rules

  	
   

  
	
  5.2

  	
  Distribution Upon
  a Change in Control

  	
   

  
	
  5.3

  	
  Death Benefits

  	
   

  
	
  5.4

  	
  Designation of Beneficiary

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
  ADMINISTRATION

  	
   

  
	
   

  	
   

  	
   

  
	
  6.1

  	
  Administrator

  	
   

  
	
  6.2

  	
  Notices

  	
   

  
	
  6.3

  	
  Powers and Duties of
  the Committee

  	
   

  



 


 


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  ARTICLE VII

  	
  AMENDMENT AND
  TERMINATION

  	
   

  
	
   

  	
   

  	
   

  
	
  7.1

  	
  Amendment

  	
   

  
	
  7.2

  	
  Termination

  	
   

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  	
  MISCELLANEOUS

  	
   

  
	
   

  	
   

  	
   

  
	
  8.1

  	
  Relationship

  	
   

  
	
  8.2

  	
  Other Benefits and Plans

  	
   

  
	
  8.3

  	
  Anticipation of Benefits

  	
   

  
	
  8.4

  	
  No Guarantee of Continued
  Employment

  	
   

  
	
  8.5

  	
  Waiver of Breach

  	
   

  
	
  8.6

  	
  Protective Provisions

  	
   

  
	
  8.7

  	
  Benefit

  	
   

  
	
  8.8

  	
  Responsibility for
  Legal Effect

  	
   

  
	
  8.9

  	
  Tax Withholding

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  AUTHORIZED SIGNATURE

  	
   

  



 


 


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CINERGY CORP. EXCESS PROFIT SHARING PLAN


 


ARTICLE I


NATURE AND PURPOSE OF PLAN


 


1.1                                 Type of Plan.  The name of this Plan is the Cinergy Corp.
Excess Profit Sharing Plan, effective January 1, 2003.  The Plan is maintained by the Company as an
unfunded, nonqualified deferred compensation plan for a select group of the
Employer’s management or highly-compensated employees.


 


1.2                                 Purpose of Plan.  The purpose of the Plan is to restore the
additional employer profit sharing contributions that an Eligible Employee
would have received under the Qualified Plan if the limitations of Code
Subsection 415(c) and Code Paragraph 401(a)(17) were not imposed to limit the
Eligible Employee’s employer profit sharing contributions under the Qualified
Plan.


 


ARTICLE II


DEFINITIONS
AND RULES OF CONSTRUCTION


 


2.1                                 Definitions.  As used in the Plan, the following words and
phrases, when capitalized, have the following meanings except when used in a
context that plainly requires a different meaning:


 


(a)                                  “Account” means the record of a Participant’s total interest in the
Plan.


 


(b)                                 “Beneficiary” means, with respect to a Participant, the person or
persons designated pursuant to Section 5.4 to receive benefits under the
Plan in the event of the Participant’s death.


 


(c)                                  “Board of Directors” means the duly constituted board of directors of
the Company on the applicable date.


 


(d)                                 “Change in Control” means an event described in Subsection 5.2(c).


 


(e)                                  “Code” means the Internal Revenue Code of 1986, as amended from
time to time, and interpretive rules and regulations thereunder.


 


(f)                                    “Committee” means a committee composed of those members of the
Compensation Committee of the Board of Directors who are not Participants in
the Plan.  To the extent authority to
administer the Plan has been delegated to the Cinergy Corp. Benefits Committee,
the term “Committee” shall mean the Cinergy Corp. Benefits Committee.


 


(g)                                 “Company” means Cinergy Corp., a Delaware Corporation, and any
corporation that shall succeed to its business and adopt the Plan.


 


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(h)                                 “Effective Date” means January 1, 2003.


 


(i)                                     “Eligible Employee” means a management or highly compensated Employee
who is selected by the Committee to participate in this Plan.


 


(j)                                     “Employee” means any person who is classified by the Employer as an
employee, including officers of the Company or a Related Employer.


 


(k)           “Employer”
means the Company and any Related Employer.


 


(l)                                     “Employer Profit Sharing Contribution” means, with respect to a
Participant, the contribution made by the Employer on behalf of a Participant
pursuant to Section 3.2.


 


(m)                               “ERISA” means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and interpretative rules and regulations thereunder.


 


(n)                                 “Insolvent” means, with respect to the Company, the Company being unable
to pay its debts as they are due, or the Company being subject to a pending
proceeding as a debtor under the United States Bankruptcy Code.


 


(o)                                 “Investment Options” means, with respect to any period, the investment
options that the Committee makes available to Participants under the Plan.  The Committee, in its sole discretion, may
from time to time establish procedures under which one or more Investment
Options are made available, in accordance with terms and conditions established
by the Committee, only to certain Participants and/or only for certain periods.


 


(p)                                 “Participant” means an Eligible Employee or former Eligible Employee who
has an interest in the Plan pursuant to Section 3.2.


 


(q)                                 “Plan” means this instrument, as amended from time to time, and the
nonqualified deferred compensation plan so established.


 


(r)                                    “Plan Year” means a calendar year commencing on or after January 1,
2003.


 


(s)                                  “Qualified Plan” means collectively the defined contribution plan(s)
intended to meet the qualification requirements of Code Subsection 401(a) that
the Committee, in its sole discretion, may designate from time to time, and
which shall initially be limited to the Cinergy Corp. Non-Union Employees’
401(k) Plan.


 


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(t)                                    “Rabbi Trust” means the grantor trust that the Company, in its sole
discretion, may establish pursuant to Subsection 4.4(b) for the deposit of
funds to be used for the Employers’ purpose of paying benefits accrued under
the Plan, subject to the claims of the Employers’ general creditors in the
event that any Employer becomes Insolvent.


 


(u)                                 “Related Employer” means any Employer that, together with the Company,
is under common control or a member of an affiliated service group, as
determined under Code Subsections 414(b), (c), (m), and (o).


 


(v)                                 “Termination of Employment” means, with respect to a Participant, the
cessation of the relationship of Employer and Employee between the Participant
and the Employer for any reason other than the Participant’s death.  A Participant shall not be treated as having
incurred a Termination of Employment until the employment relationship between
the Participant and all Related Employers has terminated.


 


(w)                               “Trustee” means the trustee of the Rabbi Trust that the Company, in its
sole discretion, may establish pursuant to Subsection 4.4(b).


 


2.2                                 Rules of Construction.  The following rules of construction shall
govern in interpreting the Plan.  The
provisions of this Plan shall be construed and governed in all respects under
and by the internal laws of the State of Ohio, to the extent not preempted by
federal law.  Words used in the
masculine gender shall be construed to include the feminine gender, where
appropriate, and vice versa.  Words used
in the singular shall be construed to include the plural, where appropriate,
and vice versa.  The headings and
subheadings in the Plan are inserted for convenience of reference only and are
not to be considered in the construction of any provision of the Plan.  If any provision of the Plan shall be held
to be illegal or invalid for any reason, that provision shall be deemed to be
null and void, but the invalidation of that provision shall not otherwise
impair or affect the Plan.


 


ARTICLE III


ELIGIBILITY
AND PARTICIPATION


 


3.1                                 Eligibility.  Participation in the Plan is limited to
Eligible Employees.  It is intended that
participation be limited to Employees who will qualify as members of a “select
group of management or highly compensated employees” under Title I of ERISA.


 


3.2                                 Employer Profit
Sharing Contributions.  If an Eligible Employee is
credited with an employer profit sharing contribution under the Qualified Plan
for a Plan Year, to the extent applicable the Employer shall credit an Employer
Profit Sharing Contribution to the Participant’s Account equal to the
additional employer profit sharing contribution that the Eligible Employee
would have had credited to his


 


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account in the Qualified Plan for the Plan Year if
the limitations of Code Subsection 415(c) and Code Paragraph 401(a)(17) were
not imposed to limit the Eligible Employee’s employer profit sharing contribution
under the Qualified Plan.


 


3.3                                 Cessation of
Participation.  Any Participant who ceases to
be an Eligible Employee, but continues to be an Employee, shall cease to be
eligible to receive contributions under this Article but shall continue to
have a Account, shall continue to be credited with earnings and losses on his
Account under Section 4.2 (until the Account is fully distributed pursuant
to Article V) and shall be entitled to receive benefits under
Article V.


 


ARTICLE IV


PARTICIPANTS’
ACCOUNT


 


4.1                                 Establishment of Account.  The Committee shall create and maintain
adequate records to disclose the interest in the Plan of each Participant and
Beneficiary.  Records shall be in the
form of individual bookkeeping accounts, which shall be credited with
contributions pursuant to Sections 3.2 and earnings and losses pursuant to
Section 4.2, and debited with any payments pursuant to
Article V.  The Participant shall
have the same vested interest in his Account under the Plan as he has with
respect to employer profit sharing contributions under the Qualified Plan, and
all determinations regarding the Participant’s vested interest in his Account
under the Plan shall be made by the Committee in accordance with the terms of
the Qualified Plan.  Notwithstanding the
preceding sentence, the Participant’s interest in his Account shall be subject
to the claims of the Employers’ general creditors in the event the Employer
becomes Insolvent.


 


4.2           Earnings and Losses.


 


(a)                                  Deemed Investment of Accounts.  During each Plan Year, a Participant’s
Account shall be credited with earnings and losses as though they are invested,
pursuant to Subsection (b), Subsection (c) or both, as applicable, in
one or more of the Investment Options. 
The deemed investment of a Participant’s Account among the Investment
Options is solely the measure of the investment performance of the
Account.  It does not give the
Participant any ownership interest in any Investment Option, nor does it bind
the Company, the Committee, or the Trustee as to the investment of any Rabbi
Trust or any other amounts represented by the Account.


 


(b)                                 Initial Deemed Investment.  Each Employer Profit Sharing Contribution
initially shall be deemed invested in such Investment Option(s) as the
Committee, in its sole discretion, may from time to time designate in
investment procedures, and which initially shall be the Investment Option known
as the Cinergy Corp. Common Stock Fund. 
The Employer Profit Sharing Contribution for each Plan Year and earnings
and losses thereon 


 


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shall remain deemed invested in such Investment Option(s) until the Employer
Profit Sharing Contribution for the Plan Year (and earnings thereon) becomes
subject to Participant direction, which shall occur at such time or times as
the Committee, in its sole discretion, may from time to time prescribe in
investment procedures, and which initially shall be the earlier of (i) the date
on which the Participant attains age 50 or (ii) the date that is three years
from the date that the Employer Profit Sharing Contribution for the Plan Year
is credited to the Participant’s Account. 
An Employer Profit Sharing Contribution that is subject to Participant
direction shall be deemed invested in accordance with Subsection (c).


 


(c)                                  Election Procedure.  Each Participant may make elections, on a
form provided by the Committee, to allocate the portion, if any, of his Account
that is subject to Participant direction among the Investment Options.  If the Participant fails to make an election
with respect to his Account, he shall be deemed to have elected to allocate the
portion of his Account that is subject to Participant direction to the
Investment Option(s) as the Committee, in its sole discretion, may from time to
time designate in investment procedures. 
The Committee, in its sole discretion, may establish from time to time
investment procedures for a Participant to change his Investment Option
designations (for his future amounts subject to Participant direction, his existing
amounts subject to Participant direction, or both).  Until a Participant timely files a new investment election form,
his prior Investment Option designations shall control.


 


4.3                                 Credits to Account.  The Employer Profit Sharing Contribution
shall be credited to a Participant’s Account in terms of cash on the same
date(s) as employer profit sharing contributions are credited to participants’
accounts under the Qualified Plan.


 


4.4           Accounts Unfunded.


 


(a)                                  Accounts shall be accounting accruals, in the names of Participants, on
the Employer’s books.  Accounts shall be
unfunded, so that the Employer’s obligation to pay benefits under the Plan is
merely a contractual duty to make payments when due under the Plan.  The Employer’s promise to pay benefits under
the Plan shall not be secured in any way, and except as provided in
Subsection (b), the Company shall not set aside or segregate assets for
the purpose of paying amounts credited to Participants’ Account.


 


(b)                                 Notwithstanding the provisions of Subsection (a), the Company, in
its sole discretion, may establish a Rabbi Trust.  The Employer, in its sole discretion, may make such contributions
to the Rabbi Trust as the Committee determines are appropriate to enable the
Employer to pay benefits under the Plan. 
Any Rabbi Trust established under this Section


 


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shall be created pursuant to a written trust
document that conforms to the model form of rabbi trust agreement approved by
the Internal Revenue Service in Revenue Procedure 92-64 (as amended
from time to time).


 


ARTICLE V


DISTRIBUTION
OF BENEFITS


 


5.1           General Distribution Rules.


 


(a)                                  General Provisions.  Except as otherwise provided in
Sections 5.2 and Section 5.3, a Participant’s Account shall be
distributed to the Participant (or to his Beneficiary in the event of his
death) as provided in this Section.


 


(b)                                 Participant’s Election.  A Participant may elect, on a form provided
by the Committee and from among the options described in this Section, the form
for the payment of his Account. 
Notwithstanding the payment terms designated by a Participant on any
prior election form, a Participant may elect to change the form of payment of
his Account to a form of payment otherwise permitted under this Section; provided
that such election shall be made on a form provided by the Committee, and
provided further that any such election made less than one year prior to the
Participant’s Termination of Employment shall not be valid, and in such case,
the distribution of his Account shall be made in accordance with the latest
valid election or elections of the Participant.


 


(1)                                  Form of Distribution.  A Participant may elect to have his
contributions (and attributable earnings) for a Plan Year distributed in one of
the following forms:


 


	
  (A)

  	
  A lump sum payment; or

  
	
   

  	
   

  
	
  (B)

  	
  Substantially equal annual
  installments over a specified number of two to ten years.

  



 


(2)                                  Time of Distribution.  Distribution of a Participant’s interest in
his Account shall commence as soon as reasonably practicable after the earlier
of the Participant’s death or his Termination of Employment.  Subsequent installments shall be payable on
or as soon as administratively feasible following the first business day of
each succeeding year.


 


(c)                                  Default Procedure.  If a Participant fails to make an election
pursuant to this Section, then, except as otherwise provided in
Section 5.2  and Section 5.3,
the Participant’s Account (and attributable earnings) shall be distributed in
five substantially equal annual installments commencing as 


 


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                                                                soon as reasonably
practicable after the earlier of the Participant’s death or his Termination of
Employment.


 


(d)                                 Distribution in Cash.  All distributions from the Plan shall be made
in the form of cash.


 


(e)                                  Small Accounts.  Notwithstanding a Participant’s election
regarding the form of payment of his Account, in the event that a Participant’s
Account has an aggregate value of less than $50,000 as of his Termination of
Employment, the Committee shall have the discretion to distribute the
Participant’s entire interest in his Account in a single lump sum payment in
cash.


 


5.2           Distribution Upon a Change in Control.


 


(a)                                  Election for a Lump Sum Payment.  Each Participant who is designated as a
“Selected Participant” by the Committee of the Company (a “Selected
Participant”) shall be entitled to make a special payment election in
accordance with the provisions of this Section 5.2(a).


 


(i)                                     Distribution Pursuant to Special Payment Election.  A Selected Participant may
elect, on a form provided by the Committee, to receive a distribution of his
Account in a single lump sum payable no later than 30 days after the later of
(1) the occurrence of a Change in Control or (2) the date of his Termination
of Employment.


 


(ii)                                  Effectiveness of Special Payment Election.  An election made pursuant to this Section
5.2(a) shall become operative only upon the occurrence of a Change in
Control.  Once operative, an election
made pursuant to this Section 5.2(a) shall override any other payment election
made by the Selected Participant pursuant to Section 5.1(b), but only if the
Selected Participant’s Termination of Employment 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.


 


(iii)                               Deadline for Special Payment Election.  In order to be effective, an election made
pursuant to this Section 5.2(a) must be made either:


 


(1)                                  Prior to the occurrence of a Potential Change in Control; or


 


(2)                                  With the consent of the Committee, during the thirty-day period
commencing upon the occurrence of a Potential Change in Control.


 


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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 5.2(a)(iii).


 


(iv)                              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 5.2(a) at anytime specified in Section 5.2(a)(iii)(1) or (2).


 


(b)                               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 Account so that a
Participant’s Account 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.


 


(c)                                Definition of Change in Control.  A “Change in Control” of the Company will be
deemed to have occurred if any of the following events occur:


 


(i)                                     Any Person is or becomes the beneficial owner (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended (“1934 Act”)), directly
or indirectly, of securities of the Company (not including in the securities
beneficially owned by such Person any securities acquired directly from the
Company or its affiliates) representing more than twenty percent (20%) of the
combined voting power of the Company’s then outstanding securities, excluding
any Person who becomes such a beneficial owner in connection with a transaction
described in Clause (1) of Paragraph (ii) below; or


 


(ii)                                  There is consummated a merger or consolidation of the Company or any
direct or indirect subsidiary of the Company with any other corporation,
partnership or other entity, other than (1) a merger or consolidation that
would result in the voting securities of the Company outstanding immediately
prior to that merger or consolidation continuing to represent (either by
remaining outstanding or by being converted into voting securities of the
surviving entity or its parent) at least sixty percent (60%) of the combined
voting power of the securities of the Company or the surviving entity or its
parent outstanding immediately after the merger or consolidation, or (2) a
merger or consolidation effected to im­plement a recapitalization of the
Company (or similar transaction) in which no Person is or becomes the
beneficial owner, directly or indirectly, of securities of the Company (not
including in the


 


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                                                securities beneficially owned by such a Person any securities acquired
directly from the Company or its affiliates other than in connection with the
acquisition by the Company or its affiliates of a business) representing twenty
percent (20%) or more of the combined voting power of the Company’s then
outstanding securities; or


 


(iii)                               During any period of two (2) consecutive years, individuals who at the
beginning of that period constitute the Board of Directors and any new director
(other than a director whose initial assumption of office is in connection with
an actual or threatened election contest, including but not limited to a
consent solicitation, relating to the election of directors of the Company)
whose appointment or election by the Company’s stockholders was approved or
recommended by a vote of at least two-thirds (2/3) of the directors then
still in office who either were directors at the beginning of that period or
whose appointment, election, or nomination for election was previously so
approved or recommended cease for any reason to constitute a majority of the
Board of Directors; or


 


(iv)                              The stockholders of the Company approve a plan of complete liquidation
or dissolution of the Company or there is consummated a sale or disposition by
the Com­pany of all or substantially all of the Company’s assets, other than a
sale or disposition by the Company of all or substantially all of the Company’s
assets to an entity, at least sixty percent (60%) of the combined voting power
of the voting se­curities of which are owned by stockholders of the Company in
substantially the same proportions as their ownership of the Company
immediately prior to the sale.


 


(d)                               Definition of Potential Change in Control.  A “Potential Change in Control” means any period
during which any of the following circumstances exist:


 


(i)                                     The Company 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


 


(ii)                                  The Company 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
the Company or such Person publicly announces that it no longer has such an
intention; or


 


(iii)                               Any Person who is or becomes the beneficial owner (as defined in Rule
13d-3 under the 1934 Act), directly or indirectly, of securities 


 


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                                                of the Company representing ten percent (10%) or more of the combined
voting power of the Company’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 the Company’s then
outstanding securities; or


 


(iv)                              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.


 


(e)                                  Definition of Person.  “Person” has the meaning set forth in
paragraph 3(a)(9) of the 1934 Act, as modified and used in subsections 13(d)
and 14(d) of the 1934 Act; however, a Person will not include the following:
(1) the Company or any of its subsidiaries or affiliates; (2) a trustee or
other fiduciary holding securities under an employee benefit plan of the
Company or any of its subsidiaries or affiliates; (3) an underwriter
temporarily holding securities pursuant to an offering of those securities; or
(4) a corporation owned, directly or indirectly, by the stockholders of the
Company in substantially the same proportions as their ownership of stock of
the Company.


 


5.3                                 Death Benefits.  In the event that a Participant dies before
his Account is completely distributed, his Beneficiary shall be entitled to a
death benefit equal to the amount credited to the Participant’s Account
immediately before his death.  The form
and timing of the payment of the death benefit shall be determined pursuant to
Section 5.1.


 


5.4                                 Designation of
Beneficiary.  A Participant’s Beneficiary
shall be the person or persons, including a trustee, designated by the
Participant pursuant to the practices of, or rules prescribed by, the
Committee, as the recipient of any benefits payable under the Plan following
the Participant’s death.  To be
effective, a Beneficiary designation must be filed with the Committee during
the Participant’s life on a form prescribed by the Committee; provided,
however, that finalized divorce or marriage (other than a common law marriage)
shall automatically revoke a previously filed Beneficiary designation, unless
in the case of divorce the former spouse was not designated as the Beneficiary
or in the case of marriage the Participant’s new spouse is already the
designated Beneficiary.  If the
Participant designates more than one Beneficiary, any payments under this
Article to each Beneficiary shall be made in equal shares unless the
Participant has designated otherwise, in which case the payments shall be made
in the shares designated by the Participant. 
If no person has been 


 


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                                                designated as the Participant’s Beneficiary, if a Participant’s
Beneficiary designation has been revoked by marriage or divorce, or if no
person designated as Beneficiary survives the Participant, the Participant’s
estate shall be his Beneficiary.


 


ARTICLE VI


ADMINISTRATION


 


6.1                                 Administrator.  The Cinergy Corp. Benefits Committee shall
be the Administrator of the Plan.  All
decisions of the Committee shall be by a vote of a majority of its members and
shall be final and binding.


 


6.2                                 Notices.  Any notice or filing required or permitted
to be given to the Committee under the Plan shall be sufficient if it is in
writing and is hand delivered, or sent by registered or certified mail, to any
member of the Committee or its designate. 
The notice or filing shall be deemed made as of the date of delivery, or
if delivery is made by mail, as of the date shown on the postmark on the receipt
for registration or certification.


 


6.3                                 Powers and Duties of the
Committee.  Subject to the specific
limitations stated in this Plan, the Committee shall have the following powers,
duties, and responsibilities:  to carry
out the general administration of the Plan; to cause to be prepared all forms
necessary or appropriate for the administration of the Plan; to keep
appropriate books and records; to determine amounts to be distributed to
Participants and Beneficiaries under the provisions of the Plan; to determine,
consistent with the provisions of this instrument, all questions of
eligibility, rights, and status of Participants and Beneficiaries under the
Plan; to issue, amend, and rescind rules relating to the administration of the
Plan, to the extent those rules are consistent with the provisions of this
document; to exercise all other powers and duties specifically conferred upon
the Committee elsewhere in this document; and to interpret, with discretionary
authority, the provisions of this Plan and to resolve, with discretionary
authority, all disputed questions of Plan interpretation and benefit
eligibility.


 


ARTICLE VII


AMENDMENT
AND TERMINATION


 


7.1                                 Amendment.  The Company reserves the right to amend the
Plan at any time by action of the Board of Directors or the Committee.  The Company, however, may not make any
amendment that reduces a Participant’s benefits accrued as of the date of the
amendment unless the Participant consents in writing to the amendment.  Notwithstanding the foregoing, the Company
may not amend any of the provisions of Section 5.2 within three years of a
Change in Control.


 


7.2                                 Termination.  The Company reserves the right to terminate
the Plan, by action of the Board of Directors or the Committee, at any time it
deems appropriate.  Upon 


 


11

















 


                                                termination of the Plan, no further contribution shall be made to the
Plan.  Subject to Section 5.2,
distribution following termination of the Plan shall be made at the time and
under the terms and conditions as the Company, in its sole discretion, shall
determine, which shall commence no later than the earlier of a Participant’s
death or Termination of Employment.


 


ARTICLE VIII


MISCELLANEOUS


 


8.1                                 Relationship.  Notwithstanding any other provision of this
Plan, this Plan and action taken pursuant to it shall not be deemed or
construed to establish a trust or fiduciary relationship of any kind between or
among the Company, Participants, Beneficiaries or any other persons.  The Plan is intended to be unfunded for
purposes of the Code and ERISA.  The
rights of Participants and Beneficiaries to receive payment of deferred
compensation under the Plan is strictly a contractual right of payment, and
this Plan does not grant, nor shall it be deemed to grant Participants,
Beneficiaries, or any other person any interest or right to any of the funds,
property, or assets of the Employer other than as an unsecured general creditor
of the Employer.


 


8.2                                 Other Benefits and Plans.  Nothing in this Plan shall be deemed to
prevent Participants from receiving, in addition to the benefits provided for
under this Plan, any funds that may be distributable to them at any time under
any other present or future retirement or incentive plan of the Employer.


 


8.3                                 Anticipation of Benefits.  Neither Participants nor Beneficiaries shall
have the power to transfer, assign, anticipate, pledge, alienate, or otherwise
encumber in advance any of the payments that may become due under this Plan,
and any attempt to do so shall be void. 
Any payments that may become due under this Plan shall not be subject to
attachment, garnishment, execution, or be transferable by operation of law in
the event of bankruptcy, insolvency, or otherwise.


 


8.4                                 No Guarantee of
Continued Employment.  Nothing contained in this Plan
or any action taken under the Plan shall be construed as a contract of
employment or as giving any Participant any right to be retained in employment
with the Employer.  The Employer specifically
reserves the right to terminate any Participant’s employment at any time with
or without cause, and with or without notice or assigning a reason, subject to
the terms of any written employment agreement between the Participant and the
Employer.


 


8.5                                 Waiver of Breach.  The Company’s or the Committee’s waiver of
any Plan provision shall not operate or be construed as a waiver of any
subsequent breach by the Participant.


 


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8.6                                 Protective Provisions.  Each Participant shall cooperate with the
Company and the Committee by furnishing any and all information requested by
the Company or the Committee in order to facilitate the payment of benefits
under the Plan, and by taking any other relevant action as may be requested by
the Company or the Committee.  If any
Participant refuses so to cooperate, the Company shall have no further
obligation to the Participant or his Beneficiary under this Plan, other than to
distribute to the Participant the 
cumulative contributions that have been made on his behalf, pursuant to
the Plan; provided, however, that the Committee may determine that benefits may
be payable in an amount reduced to compensate the Company for any loss, cost,
damage, or expense suffered or incurred by the Company as a result in any way of
the Participant’s action or failure to act.


 


8.7                                 Benefit.  This Plan shall be binding upon and inure to
the benefit of the Employer and its successors and assigns.


 


8.8                                 Responsibility for Legal
Effect.  Neither the Committee nor the
Company makes any recommendations or warranties, express or implied, or assumes
any responsibility concerning the legal context or other implications or
effects of this Plan.


 


8.9                                 Tax Withholding.  The Employer shall withhold from any
contributions or from any payment made under the Plan such amount or amounts as
may be required by applicable federal, State, or local laws.


 


                Cinergy
Corp. has caused this document to be executed by its duly authorized officer,
as of the 20th day of December, 2002.


 


	
   

  	
  /s/  Timothy J. Verhagen

  
	
  By:

  	
   

  
	
   

  	
  Timothy J. Verhagen

  
	
   

  	
  Vice President

  
	
   

  	
  Human Resources