**Exhibit 10.fff**

 

Adopted pursuant to resolutions of theCinergy Corp.

Benefits Committee on December 17, 2004

 

**AMENDMENT TO THE**

**CINERGY CORP. NON-UNION EMPLOYEES’ 401(K)PLAN**

 

The Cinergy Corp. Non-Union Employees’ 401(k)Plan, as amended and restated effective January 1, 2003, is hereby amended,effective as of January 1, 2005 or such other date specified below.

 

# **Explanation of Amendment**

 

The amendment (i) clarifiesthat nonresident aliens with no United States source income are not eligible toparticipate in the Plan, (ii) provides that individuals who were terminated inconnection with the transition of certain informationtechnology-related responsibilities from the Company will be entitledto receive a profit-sharing contribution for 2004 even if they are not employedby the Company and its affiliates on December 31, 2004, (iii) clarifies thePlan’s disability provisions, (iv) reduces the amount to which an involuntarycash-out applies from $5,000 to $1,000 and provides that such determinationshall be made after taking into account rollover contributions and (v)clarifies the Plan’s ERISA Section 404(c) provisions.

 

**Amendment**

 

(a)            Section2.1(o) of the Plan is hereby amended and restated in its entirety to provide asfollows:

 

**“Eligible Employee”**means an Employee on the payroll of an Employer who has attained age 18, provided,however, that an “EligibleEmployee” shall not include (1) an Employee whose terms and conditionsof employment are governed by a collective bargaining agreement unless thecollective bargaining agreement provides for such participation, (2) a “leasedemployee” (as defined in Section 3.3), (3) an individual who is classifiedby the Employer as a summer laborer or a summer employee and (4) an individualwho is a nonresident alien and who receives no earned income (within themeaning of Section 911(d)(2) of the Code) from an Employer which constitutesincome from sources within the United States (within the meaning of Section861(a)(3) of the Code).”

 

(b)            Effectiveas of January 1, 2004, Section 4.10(a) of the Plan is hereby amended andrestated in its entirety to provide as follows:

 

### “**BalancedProfit Sharing Contributions**. Each Employer may, in its discretion, make a Balanced Profit SharingContribution to the Plan for a Plan Year in an amount determined by theCompany.  Any Balanced Profit SharingContribution made by an Employer for a Plan Year shall be allocated amongBalanced Program Employees (as defined in Subsection 4.10(c) below) who are employedwith the Employer as Balanced

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### Program Employees on the last day of the PlanYear, provided, however, that any Balanced Profit SharingContribution made by an Employer for the Plan Year ending on December 31, 2004shall be allocated among (i) Balanced Program Employees (as defined inSubsection 4.10(c) below) who are employed with the Employer as BalancedProgram Employees on the last day of the Plan Year and (ii) any individual whowas a Balanced Program Employee during at least one day of the Plan Year and whovoluntarily terminated employment with the Company and its Affiliates,between August 7, 2004 and October 31, 2004, and commenced employment withComputer Sciences Corporation, International Business Machines Corporation ordbaDirect Inc., or one of their affiliates, in connection withthe transition of certain informationtechnology-related responsibilities from the Company.  The allocable share of each such Balanced Program Employeedescribed in the preceding sentence shall be in the ratio which his ProfitSharing Earnings (as defined in Subsection 4.10(c) below) bears to theaggregate of such Profit Sharing Earnings for all such Balanced ProgramEmployees.”

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(c)            Effectiveas of January 1, 2004, Section 4.10(b) of the Plan is hereby amended andrestated in its entirety to provide as follows:

 

### “**InvestorProfit Sharing Contributions**. Each Employer may, in its discretion, make an Investor Profit SharingContribution to the Plan for a Plan Year in an amount determined by theCompany.  Any Investor Profit SharingContribution made by an Employer for a Plan Year shall be allocated amongInvestor Program Employees (as defined in Subsection 4.10(c) below) who areemployed with the Employer as Investor Program Employees on the last day of thePlan Year, provided, however, that any  Investor Profit Sharing Contribution made byan Employer for the Plan Year ending on December 31, 2004 shall be allocatedamong (i) Investor Program Employees (as defined in Subsection 4.10(c) below)who are employed with the Employer as Investor Program Employees on the lastday of the Plan Year and (ii) any individual who was an Investor ProgramEmployee during at least one day of the Plan Year and who voluntarilyterminated employment with the Company and its Affiliates, between August7, 2004 and October 31, 2004, and commenced employment with ComputerSciences Corporation, International Business Machines Corporation or dbaDirectInc., or one of their affiliates, in connection with the transition ofcertain information technology-related responsibilities from theCompany.  The allocable share of each such Investor Program Employeedescribed in the preceding sentence shall be in the ratio which his ProfitSharing Earnings (as defined in Subsection 4.10(c) below) bears to theaggregate of such Profit Sharing Earnings for all such Investor ProgramEmployees.”

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(d)            Thefirst sentence of Section 5.3 of the Plan is hereby amended and restated in itsentirety to provide as follows:

 

“Upon a Member’s termination of employment for any reason, includingretirement or death, or upon a Member’s Disability, the Member’s Profit SharingAccount shall be distributable as provided in Article 6.”

 

(e)            Thefirst sentence of Section 6.1 of the Plan is hereby amended and restated in itsentirety to provide as follows:

 

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“Upon a Member’s termination of employment for any reason, includingretirement or death, or upon a Member’s Disability, the vested amount of theMember’s Account will be distributable to the Member, or to the Member’sBeneficiary in case of the Member’s death.”

 

(f)             Effectivewith respect to distributions on or after March 28, 2005, Section 6.2(b) of thePlan is hereby amended and restated in its entirety to provide as follows:

 

### “If the vested portion of the Member’sAccount to be distributed pursuant to Section 6.1 does not exceed $1,000,then the distribution will be made as soon as practicable following terminationof employment.  If the value of thevested portion of the Member’s Account exceeds $1,000, then the distributionwill be made as of any Valuation Date elected by the Member, subject to (a)through (g).”

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(g)            Effectivewith respect to distributions on or after March 28, 2005, the first sentence ofthe second paragraph of Section 6.3(c) of the Plan is hereby amended andrestated in its entirety to provide as follows:

 

### “If a Member dies prior to commencement ofdistribution of his Account, and the value of the vested portion of his Accountbalance exceeds $1,000, the Member’s Beneficiary may elect to receivedistribution of the vested portion of the Member’s Account in a lump sum or inannual installments over a period not exceeding the greater of ten years or theBeneficiary’s life expectancy as of the date payments commence.”

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(h)            Section7.3 of the Plan is hereby amended by adding the following at the end thereof:

 

“(d)          **ERISA Section 404(c).** The Plan is intended to be an “ERISA Section 404(c) plan” as defined inDepartment of Labor Regulations Section 2550.404c-1(b).  Pursuant to Department of Labor RegulationsSection 2550.404c-1(d)(2)(ii)(E)(4)(viii), the Benefits Committee shall be thefiduciary that shall ensure that (i) sufficient procedures are in place so thatinformation relating to the purchase, holding and sale of Cinergy Stock, andthe exercise of voting, tender and similar rights with respect to suchsecurities by Members and Beneficiaries, is maintained in accordance withprocedures which are designed to safeguard the confidentiality of such information,except to the extent necessary to comply with federal laws or state laws notpreempted by ERISA, (ii) such procedures are being followed and (iii) anindependent fiduciary has been appointed to carry out activities relating toany situations which the Benefits Committee determines involve a potential forundue employer influence upon Members and Beneficiaries with regard to thedirect or indirect exercise of shareholder rights.”

 

(i)             Effectivewith respect to distributions on or after March 28, 2005, Paragraph 2 ofSection 6 of the Addendum to the Plan is hereby amended and restated in itsentirety to provide as follows:

 

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“2.  Rollovers Included in Determining Value ofAccount Balance for Involuntary Distributions. For purposes of Subsection6.2 of the Plan, the value of a participant’s nonforfeitable account balanceshall be determined after taking into account that portion of the accountbalance that is attributable to rollover contributions (and earnings allocablethereto) within the meaning of Sections 402(c), 403(a)(4), 403(b)(8),408(d)(3)(A)(ii), and 457(e)(16) of the Code. If the value of the participant’s nonforfeitable account balance as sodetermined is $1,000 or less, the Plan shall immediately distribute theparticipant’s entire nonforfeitable account balance.”

 

IN WITNESS WHEREOF, Cinergy Corp. has caused this Amendment to beexecuted and approved by its duly authorized officer.

 

 
|   | By:    | /s/ Timothy J. Verhagen           |   |
|--------|--------|-----------------------------------|--------|
|   |   | Timothy J. Verhagen               |
|   |   | Vice President of Human Resources |
|   |   |                              |
|   |   |                              |
|   | Date:  | December 17, 2004                 |   |
|        |        |                                   |        |  |

 

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