**Exhibit 10.kk**

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**Adopted pursuant to resolutions of theCinergy Corp. Benefits Committeeon December 18, 2002**

 

**AMENDMENT TO THECINERGY CORP. 401(K) EXCESS PLAN**

 

The CinergyCorp. 401(k) Excess Plan, originally adopted as of January 1, 1997, as amendedfrom time to time (the “Plan”), is hereby amended effective as of January 1,2003 unless otherwise provided below.

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**(1)****                                 Explanationof Amendment**

 

The Plan isamended to clarify the relationship between the Plan and the Cinergy Corp.Non-Union Employees’ 401(k) Plan, to reflect the change in the name of theCinergy Corp. Non-Union Employees’ 401(k) plan, and to clarify certainprovisions regarding the company matching contributions under the Plan.

 

**(2)****                                 Amendment**

 

(a)                                  Effectiveas of January 1, 1998, Section 2.1(q) of the Plan is hereby amended in itsentirety to read as follows:

 

““401(k) Plan” means the Cinergy Corp. Non-Union Employees’ 401(k)Plan.”

 

(b)                                 Section3.2(a) of the Plan is hereby amended in its entirety to read as follows:

 

“ElectionProcedure.  Within a reasonable timebefore the beginning of each Plan Year, the Committee shall provide eachEligible Employee with a Deferral Agreement. An Eligible Employee may elect to defer his or her compensation to thePlan by delivering a completed Deferral Agreement to the Committee or itsdesignate prior to the first day of the Plan Year.  On the Deferral Agreement, the Eligible Employee shall indicatethe amount or percentage of his Compensation to be deferred under the Plan forthe Plan Year as an elective contribution, subject to the provisions ofSubsection (b).  Subject to Subsection(c), an election made under this Section shall be effective as of the first dayof the Plan Year, and subject to Subsection (d), the election for any Plan Yearshall be irrevocable.”

 

(c)                                  Section3.3 of the Plan is hereby amended in its entirety to read as follows:

 

“3.3                           Employer Base MatchingContributions.  For each Plan Year,if an Eligible Employee is entitled to an employer base matching contributionunder his or her 401(k) Plan and the Eligible Employee defers the maximumamount that he or she can defer under the 401(k) Plan, the

 

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Employer shall make an Employer Base Matching Contribution to theParticipant’s Matching Account equal to the excess, if any, of (i) the amountwhich would have been contributed by the Employer to the 401(k) Plan for suchEligible Employee for such Plan Year as an employer base matching contribution(determined without regard to the limitations of the Code) if the EligibleEmployee’s aggregate deferrals under the 401(k) Plan and under this Plan hadbeen contributed by him to the 401(k) Plan, over (ii) the actual amount thathas been contributed by the Employer to the 401(k) Plan for such Eligible Employeefor such Plan Year as an employer base matching contribution.”

 

(d)                                 Section 3.4 of thePlan is hereby amended in its entirety to read as follows:

 

“3.4                           Employer IncentiveMatching Contributions.  For eachPlan Year, if an Eligible Employee is entitled to an employer incentivematching contribution under his or her 401(k) Plan and the Eligible Employeedefers the maximum amount that he or she can defer under the 401(k) Plan, theEmployer shall make an Employer Incentive Matching Contribution to the Participant’sMatching Account equal to the excess, if any, of (i) the amount which wouldhave been contributed by the Employer to the 401(k) Plan for such EligibleEmployee for such Plan Year as an employer incentive matching contribution(determined without regard to the limitations of the Code) if the EligibleEmployee’s aggregate deferrals under the 401(k) Plan and under this Plan hadbeen contributed by him to the 401(k) Plan, over (ii) the actual amount thathas been contributed by the Employer to the 401(k) Plan for such EligibleEmployee for such Plan Year as an employer incentive matching contribution.”

 

(e)                                  Section4.3(b) of the Plan is hereby amended in its entirety to read as follows:

 

“(b)                           The Employer Base MatchingContribution shall be credited to a Participant’s Matching Account inaccordance with rules adopted by the Committee or its delegate. An EligibleEmployee does not need to make deferrals pursuant to Section 3.2 (Election toDefer) of this Plan to receive Employer Base Matching Contributions.”

 

(f)                                    Section4.3(c) of the Plan is hereby amended in its entirety to read as follows:

 

“(c)                            The Employer IncentiveMatching Contribution shall be credited to a Participant’s Matching Account inaccordance with rules adopted by the Committee or its delegate.  An Eligible Employee does not need to makedeferrals pursuant to Section 3.2 (Election to Defer) of this Plan to receiveEmployer Incentive Matching Contributions.”

 

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(g)                                 Section 4.7 of thePlan is hereby amended by adding the following new subsection (c) at the endthereof:

 

“(c)                            This Section 4.7 shall notapply for Plan Years beginning on or after January 1, 2003.”

 

IN WITNESSWHEREOF, Cinergy Corp. has caused this Amendment to be executed and approved byits duly authorized officer on December 20, 2002.

 
|   | By:                              |   |
|--------|----------------------------------|--------|
|   | Timothy J.  Verhagen             |
|   | Vice  President  Human Resources |

 

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