**Exhibit 10.jjj**

 

Adopted pursuant to resolutions of theCinergy Corp.

Benefits Committee on December 17, 2004

 

**AMENDMENT TO THE**

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

 

The Cinergy Corp. 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) clarifies the Plan’s disability provisions, (iii)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 (iv) clarifies the Plan’s ERISA Section404(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 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).”

 

(b)            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.”

 

(c)            Thefirst sentence of Section 6.1 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 vested amount of theMember’s Account will

 

1

----

 

be distributable to the Member, or to the Member’s Beneficiary in caseof the Member’s death.”

 

(d)            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 the vestedportion of the Member’s Account exceeds $1,000, then the distribution will bemade as of any Valuation Date elected by the Member, subject to (a) through(g).”

###  

(e)            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.”

###  

(f)             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 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.”

 

(g)            Effectivewith respect to distributions on or after March 28, 2005, Paragraph 2 ofSection 5 of the Addendum to the Plan is hereby amended and restated in itsentirety to provide 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

 

2

----

 

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                 |   |
|        |        |                                   |        |  |

 

3

----