**Exhibit 10.nnn**

 

Adopted pursuant to resolutions of theCinergy Corp.

Benefits Committee on December 17, 2004

 

**AMENDMENT TO THE**

**CINERGY CORP. UNION EMPLOYEES’ SAVINGSINCENTIVE PLAN**

 

The Cinergy Corp. Union Employees’ SavingsIncentive Plan, as amended and restated effective January 1, 2003, is herebyamended, effective as of January 1, 2005 or such other date specified below.

 

# **Explanation of Amendment**

# ** **

The amendment (i) providesthat those employees whose terms of employment are governed by the collective bargainingagreement with the International Brotherhood of Electrical Workers Local Union1347 will be permitted to make pre-tax and after-tax contributions fromovertime pay, (ii) clarifies that nonresident aliens with no United Statessource income are not eligible to participate in the Plan, (iii) clarifies thatthe portion of the Plan that benefits employees whose terms of employment are governedby the collective bargaining agreement with the International Brotherhood ofElectrical Workers Local Union 1347 will no longer be a “401(k) safe harbor”plan after December 31, 2004, (iv) clarifies the Plan’s disability provisions,(v) reduces the amount to which an involuntary cash-out applies from $5,000 to$1,000 and provides that such determination shall be made after taking intoaccount rollover contributions and (vi) clarifies the Plan’s ERISA Section 404(c)provisions.

 

**Amendment**

 

(a)                                  Section 2.1(k) of thePlan is hereby amended and restated in its entirety to provide as follows:

 

“**“Compensation”** means—

 

(1)                                    for purposes of Sections 4.1, 4.2 and 4.3, the Employee’s“base compensation”;

 

(2)                                    for purposes of Section 4.4, “compensation” as definedin Section 414(s) of the Code; and

 

(3)                                    for purposes of Sections 2.1(w) and 4.6, “compensation”as defined in Section 415(c)(3) of the Code.

 

Thefollowing provisions shall apply for purposes of determining an Employee’s “base compensation”.

 

(A)                                For Employees whose terms of employment are not governed bythe collective bargaining agreement with the International Brotherhood ofElectrical Workers Local Union 1347, **“basecompensation”** means the Employee’s base rate of

 

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pay,exclusive of any allowances, premiums, bonuses, overtime pay, or other forms ortypes of compensation, for the applicable period.

 

(B)                                  For Employees whose terms of employment are governed by thecollective bargaining agreement with the International Brotherhood ofElectrical Workers Local Union 1347, **“basecompensation”** means (i) for purposes of Sections 4.1 and 4.2, thesum of the Employee’s base rate of pay and overtime pay, exclusive of anyallowances, premiums, bonuses, or other forms or types of compensation, for theapplicable period and (ii) for purposes of Section 4.3, the Employee’s base rateof pay, exclusive of any allowances, premiums, bonuses, overtime pay, or otherforms or types of compensation, for the applicable period.

 

(C)                                  For Employees paid on an hourly basis, the “base rate of pay”means the Employee’s hourly base rate of pay multiplied by the Employee’s hoursworked during the applicable period.

 

(D)                                 For all Employees, “base compensation” shall be determinedprior to any reductions for Deferred Compensation Contributions and otherelective contributions made by the Employer on the Employee’s behalf during orfor the Plan Year that are not includable in gross income underSection 125 of the Code, Section 402(e)(3) of the Code,Section 402(h) of the Code, Section 403(b) of the Code or, for PlanYears beginning on or after January 1, 2001, Section 132(f) of the Code.

 

TheCompensation of each Employee that may be taken into account under the Plan fora Plan Year will not exceed $210,000 (as adjusted by the Secretary of theTreasury pursuant to Section 401(a)(17) of the Code).  For purposes of this Subsection 2.1(k),Compensation shall include any elective amounts that are not includible in thegross income of the employee by reason of Section 132(f)(4) of the Code.”

 

(b)                                   Section 2.1(o) ofthe Plan is hereby amended and restated in its entirety to provide as follows:

 

**“Eligible Employee”**means an Employee on the payroll of an Employer who has attained age 18 andwhose terms and conditions of employment are governed by a collectivebargaining agreement that provides for participation in the Plan, provided,however, that an “EligibleEmployee” shall not include (1) a “leased employee” (as defined inSection 3.3), (2) an individual who is classified by the Employer as asummer laborer or a summer employee and (3) an individual who is a nonresidentalien and who receives no earned income (within the meaning of Section911(d)(2) of the Code) from an Employer which constitutes income from sourceswithin the United States (within the meaning of Section 861(a)(3) of the Code).”

 

(c)                                    Section 4.9(a) ofthe Plan is hereby amended and restated in its entirety to provide as follows:

 

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### “Except for the portion of thePlan that benefits those Employees whose terms of employment are governed bythe collective bargaining agreement with the International Brotherhood ofElectrical Workers Local Union 1347, the Plan is intended to satisfy the actualdeferral percentage test contained in Section 4.4(b) of the Plan and, withrespect to Employer Matching Contributions, the actual contribution percentagetest contained in Section 4.4(c) of the Plan, respectively, by meeting therequirements of the design-based safe harbors contained inSection 401(k)(12) and 401(m)(11) of the Code.  Sections 4.9(b) and 4.9(c) shall not apply tothose Employees who are covered by the collective bargaining agreement with theInternational Brotherhood of Electrical Workers Local Union 1347.”

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(d)                                   The first sentenceof Section 5.3 of the Plan is hereby amended and restated in its entirety toprovide 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)                                    The first sentenceof Section 6.1 of the Plan is hereby amended and restated in its entirety toprovide as follows:

 

“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)                                      Effective withrespect to distributions on or after March 28, 2005, Section 6.2(b) of the Planis 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)                                   Effective withrespect to distributions on or after March 28, 2005, the first sentence of thesecond paragraph of Section 6.3(c) of the Plan is hereby amended and restatedin 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)                                   Section 7.3 of thePlan is hereby amended by adding the following at the end thereof:

 

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“(d)                             **ERISASection 404(c).**  The Plan isintended to be an “ERISA Section 404(c) plan” as defined in Department of LaborRegulations Section 2550.404c-1(b). Pursuant to Department of Labor Regulations Section2550.404c-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 suchinformation, except to the extent necessary to comply with federal laws orstate laws not preempted by ERISA, (ii) such procedures are being followed and(iii) an independent fiduciary has been appointed to carry out activitiesrelating to any situations which the Benefits Committee determines involve apotential for undue employer influence upon Members and Beneficiaries withregard to the direct or indirect exercise of shareholder rights.”

 

(i)                                       Effective withrespect to distributions on or after March 28, 2005, Paragraph 2 of Section 5of the Addendum to the Plan is hereby amended and restated in its entirety toprovide as follows:

 

“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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