**Exhibit 10-lll**

 

**Adopted by the Cinergy Corp.**

**Benefits Committee on August 29, 2002**

 

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**AMENDMENT TO THE**

**CINERGY CORP. EXCESS PENSION PLAN**

 

 

The Cinergy Corp. ExcessPension Plan, as amended and restated effective as of January 1, 1998 (the“Plan”), is hereby amended effective as of August 29, 2002.

**(1)           Explanationof Amendment**

 

The Plan is amended toprovide certain participants with the opportunity to make an election toreceive their Plan benefits in a single lump sum under certain circumstancesfollowing a Change in Control.  The Planis further amended to provide that nonelective employer contributions made onbehalf of a participant under the Cinergy Corp. Excess 401(k) Plan shall betaken into account when determining a participant’s Unrestricted Benefit, butonly to the extent specifically provided by the Committee.

 

**(2)           Amendment**

 

(a)                                  Section 1.22 ofthe Plan is hereby amended by adding the following at the end thereof:

 

“Notwithstanding thepreceding sentence, but only to the extent specified by the Committee, (a) anynonelective employer contributions (other than matching contributions) made onbehalf of a Participant under the Cinergy Corp. 401(k) Excess Plan during anyapplicable period shall be taken into account when calculating such Participant’sUnrestricted Benefit and (b) any Participant who receives nonelective employercontributions (other than matching contributions) under the Cinergy Corp.401(k) Excess Plan during the year in which occurs his Severance from ServiceDate (as defined in Cinergy’s Pension Plan) shall be treated, for purposes ofcalculating his Unrestricted Benefit, as if he had received Sabbatical VacationPay (as defined in Cinergy’s Pension Plan) in the amount that he would havereceived if such nonelective employer contributions were part of his BaseSalary (as defined in Cinergy’s Pension Plan) during the year in which occurshis Severance from Service Date.”

 

(b)                                 Article 1 ofthe Plan is hereby amended by adding the following new Section 1.23 immediatelyfollowing Section 1.22:

 

“1.23                     “Potential Change inControl” means any period during which any of the following circumstancesexist:

 

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(a)                                  Cinergy entersinto an agreement, the consummation of which would result in the occurrence ofa Change in Control; provided that a Potential Change in Control shall cease toexist upon the expiration or other termination of such agreement; or

 

(b)                                 Cinergy or anyPerson publicly announces an intention to take or to consider taking actionswhich, if consummated, would constitute a Change in Control; provided that aPotential Change in Control shall cease to exist when Cinergy or such Personpublicly announces that it no longer has such an intention; or

 

(c)                                  Any Person whois or becomes the beneficial owner (as defined in Rule 13d-3 under theSecurities Exchange Act), directly or indirectly, of securities of Cinergyrepresenting ten percent (10%) or more of the combined voting power ofCinergy’s then outstanding securities, increases such Person’s beneficialownership of such securities by an amount equal to five percent (5%) or more ofthe combined voting power of Cinergy’s then outstanding securities; or

 

(d)                                 The Board ofDirectors adopts a resolution to the effect that, for purposes hereof, aPotential Change in Control has occurred.

 

Notwithstanding anythingherein to the contrary, a Potential Change in Control shall cease to exist notlater than the date that (i) the Board of Directors determines that thePotential Change in Control no longer exists, or (ii) a Change in Controloccurs.

 

The terms “Person” and“Securities Exchange Act” where used herein shall have the meaning given tosuch terms in the Cinergy’s Pension Plan.”

 

(c)                                  Article 6 ofthe Plan is hereby amended by adding the following new Section 6.6 at the endthereof:

 

“6.6         Special Payment Election EffectiveUpon a Change in Control.

 

Notwithstandingany other provision of this Plan, each Participant who is designated as a“Selected Participant” by the Committee (a “Selected Participant”) shall beentitled to make a special payment election in accordance with the provisionsof this Section 6.6.

 

(a)                                       DistributionPursuant to Special Payment Election.  A Selected Participant may elect, on a form provided by theCommittee, to receive a single lump sum cash payment in an amount equal to theActuarial Equivalent (as defined below) of his benefits under the

 

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                                                   Plan (or theActuarial Equivalent of his remaining benefits under the Plan in the event thatpayment of his benefits under the Plan has already commenced) payable no laterthan 30 days after the later of the occurrence of a Change in Control or thedate of his termination of employment with Cinergy and its Affiliates.

 

(b)                           Effectivenessof Special Payment Election.  An election made pursuant to this Section shall become operativeonly upon the occurrence of a Change in Control and only if the Participant’stermination of employment with Cinergy and its Affiliates occurs either (1) priorto the occurrence of a Change in Control or (2) during the 24-month periodcommencing upon the occurrence of a Change in Control.  Once operative, such special paymentelection shall override any other payment election made by the Participant withrespect to his benefits under the Plan.

 

(c)                            Deadline forSpecial Payment Election.  Inorder to be effective, an election made pursuant to this Section must be madeeither prior to the occurrence of a Potential Change in Control or, with theconsent of the Committee, during the thirty-day period commencing upon theoccurrence of a Potential Change in Control. In the event that a Potential Change in Control occurs and subsequentlyceases to exist, other than as a result of a Change in Control, such PotentialChange in Control shall be disregarded for purposes of this Section.

 

(d)                           Withdrawal ofSpecial Payment Election.  ASelected Participant may withdraw, on a form provided by the Committee, aspecial payment election made by him pursuant to this Section at anytimespecified in the first sentence of Section 6.6(c).

 

(e)                            In the event aSelected Participant makes a special payment election and pursuant to thatelection becomes entitled to receive a single lump sum cash payment pursuant tothis Section payable prior to the commencement of the payment of hisbenefits, for purposes of this Section the Actuarial Equivalent of hisbenefits under the Plan shall be calculated based on the followingassumptions:

 

 (I)                                      The form ofpayment for each of the Selected Participant’s retirement benefits under thePlan and Cinergy’s Pension Plan shall be a single life annuity;

 

 (II)                                  The commencement date foreach of the Selected Participant’s retirement benefits under the Plan andCinergy’s Pension Plan shall be the first day of the calendar

 

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                                                   monthcoincident with or next following the later of his Severance from Service Date(as defined in Cinergy’s Pension Plan) or his 50th birthday; and

 

 (III)                              The term“Actuarial Equivalent” has the meaning given to that termin Cinergy’s Pension Plan with respect to lump sum payments.

 

(f)                              In the event aSelected Participant makes a special payment election pursuant to this Sectionand pursuant to that election becomes entitled to receive a single lump sumcash payment payable after the commencement of the payment of hisbenefits, his lump sum cash payment shall be equal to the Actuarial Equivalent(as that term is used in Cinergy’s Pension Plan with respect to lump sumpayments) of his remaining benefits under the Plan.

 

(g)                           The payment ofa single lump sum in cash, pursuant to this Section, to or on behalf of aParticipant shall completely discharge any liability under the Plan to or onbehalf of that Participant.

 

(h)                           CommitteeDiscretion 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 distributionof a Participant’s benefits under the Plan so that the Actuarial Equivalent ofsuch benefits shall be distributed to the Participant (or, in the event of hisdeath, to his Beneficiary) in a single lump sum payment no later than 30 daysafter the Change in Control occurs.”

 

 

INWITNESS WHEREOF, Cinergy Corp. has caused this Amendment to be executed andapproved by its duly authorized officer as of August 29, 2002.

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

 

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