**Exhibit10.yy**

 

Adopted pursuantto resolutions of the Cinergy Corp.

Benefits Committeeon December 17, 2004

 

**AMENDMENT TO THE**

**CINERGY CORP. NON-UNION EMPLOYEES’ PENSION PLAN**

 

TheCinergy Corp. Non-Union Employees’ Pension Plan, as amended and restated effectiveJanuary 1, 2003, is hereby amended, effective as of January 1, 2005 or suchother date specified below.

 

**(1)****          ****Explanation of Amendment**

 

The Amendment (i) clarifiesthe actuarial factors applicable to level income forms of benefit, (ii)clarifies that nonresident aliens with no United States source income are noteligible to participate in the Plan, (iii) reduces the amount to which aninvoluntary cash-out applies from $5,000 to $1,000, (iv) provides that, forpurposes of the traditional program, accrued vacation pay will be taken intoaccount when determining the highest average earnings of a participant in thephased retirement program and when determining the highest average earnings ofa Participant whose highest average annual earnings for any three consecutivecalendar years out of his last ten years of participation do not occur duringthe final three years of his participation, (v) increases the multiplier, forpurposes of the traditional program formula, from 1.4 percent to 1.55 percentfor years of participation in excess of 35 for participants who terminateemployment on or after January 1, 2005 and (vi) deletes the exclusion ofemployees of Vestar, Inc.

 

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

 

(a)            For annuity starting dates beginning on orafter July 1, 2004, Section 1.5(c) of the Plan is hereby amended and restatedin its entirety to read as follows:

 

### “Lump Sums and Level Income Forms ofPayment:

###  

Withrespect to any lump sum payment under Subsection 7.2(f) (Cash BalanceAccount Single Sum) or Section 8.3 (Small Benefits), and any level income formof payment that may be payable under Subsection 7.2(d) (Life Annuity LevelIncome Option) or Subsection 7.2(e) (100 Percent Contingent Annuitant LevelIncome Option) that may be payable under the Plan during a Plan Year, the ActuarialEquivalent will be calculated using the applicable mortality table asprescribed from time to time by the Secretary of the Treasury (fordistributions with Annuity Starting Dates after December 30, 2002, themortality table prescribed in Revenue Ruling 2001-62) and an interest rateequal to the “applicable interest rate” under Code subsection 417(e) asspecified by the Commissioner of Internal Revenue in revenue rulings, noticesor other guidance published in the Internal Revenue Bulletin (currently basedon the annual rate of interest on 30-year Treasury securities) for the fifthfull calendar month preceding the first day of the Plan Year in which theAnnuity Starting Date occurs.”

 

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(b)            Section 1.5 of the Plan is hereby amended byadding the following at the end thereof:

 

“(g)         Special Rule for Level Income Option:

 

Inthe case of a Participant who had an accrued benefit under the Plan as of June30, 2004, no benefit determination of the level income option form of paymentwill produce an amount with respect to the accrued benefit under the Plan as ofJune 30, 2004 that is less than that which would have been produced utilizingboth the actuarial assumptions specified in the Plan as in effect on June 30,2004 and the annual pension accrued as of June 30, 2004, determined under theprovisions of the Plan as then in effect.”

 

(c)            Section 1.38 of the Plan is hereby amended byadding the following at the end thereof:

 

“Notwithstandingthe foregoing provisions of this Section, an Eligible Employee shall notinclude any individual who is a nonresident alien and who receives no earnedincome (within the meaning of Section 911(d)(2) of the Code) from an Employerwhich constitutes income from sources within the United States (within themeaning of Section 861(a)(3) of the Code).”

 

(d)            Effective as of January 1, 2003, Section 1.38is hereby amended by deleting the following sentence from such Section:

 

“Notwithstandingthe foregoing provisions of this Section 1.38, Eligible Employee shall notinclude any Employee of Vestar, Inc. whose Employment Commencement Date isafter December 31, 2002.”

 

(e)            Section 1.52 of the Plan is hereby amended byadding the following at the end thereof:

 

“Notwithstandingthe foregoing, in the event that the Participant’s highest average annualEarnings occurs other than during his last 36 months of Participation, theParticipant’s Highest Average Earnings shall be calculated as if the AccruedVacation Pay, if any, that was received by the Participant was received duringthe last month that occurs during the period that is used for purposes ofdetermining the Participant’s Highest Average Earnings.

 

Notwithstandingthe foregoing, but only with respect to a Participant who is in the Employer’sphased retirement program, in the event that the Participant receives AccruedVacation Pay in the Plan Year immediately following the Plan Year in which hebegins to participate in the phased retirement program, the Participant’sHighest Average Earnings shall be calculated as if such Accrued Vacation Paywas received by the Participant  duringthe last month that occurs during the period that is used for purposes ofdetermining the Participant’s Highest Average Earnings.”

 

(f)             Section 4.1 of the Plan is hereby amended andrestated in its entirety to read as follows:

 

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## “NormalRetirement Pension Formula

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Exceptas otherwise expressly provided in this Article, a Participant who retires onor after his Normal Retirement Date will be entitled to a Nonforfeitable AnnualPension under this Plan equal to the sum of (a) plus (b), where (a) is equalto:

 

#### (1)           1.1 percentof the Participant’s Highest Average Earnings plus

####  

(2)           0.5 percent of the amount by which hisHighest Average Earnings exceed his applicable Covered Compensation, multipliedby the number of his years of Participation not in excess of 35;

 

and (b) is equal to:

 

(1)           except as provided inSubsection (2) below, 1.4 percent of the Participant’s Highest AverageEarnings, multiplied by the number of his years of Participation in excess of35, and

 

(2)           for each Participant whoseSeverance from Service occurs on or after January 1, 2005, 1.55 percent ofthe Participant’s Highest Average Earnings, multiplied by the number of hisyears of Participation in excess of 35.”

 

(g)            Section 4.1A(b) of the Plan is hereby amendedby adding the following at the end thereof:

 

“Ifat the time that the Participant first becomes a Cash Balance Participant inaccordance with Subsection 3.2(c) he has at least 35 years ofParticipation in the Cinergy Corp. Union Employees’ Retirement Income Plan orthe Cinergy Corp. Non-Union Employees’ Pension Plan under a formula other thana cash balance formula, his opening balance in his Cash Balance Account (as ofthe date he becomes a Cash Balance Participant) shall be determined as providedabove in this Subsection (b) except that his accrued benefit  (payable in the form of an annuity for thelife of the Participant beginning at the later of the Participant’s normalretirement date under the transferor plan or the first day immediately prior tothe date the Participant becomes or again becomes a Cash Balance Participant)with respect to which assets (and liabilities) were transferred from theCinergy Corp. Union Employees’ Retirement Income Plan or Cinergy Corp. Non-UnionEmployees’ Pension Plan) shall be determined as if his years of Participationin excess of 35 were multiplied by 1.55 percent, rather than by 1.4 percent, inthe pension formula contained in the applicable transferor plan.”

 

(h)            Effective with respect to distributions madeon or after March 1, 2005, Section 8.3 of the Plan is hereby amended bydeleting the amount of “$5,000” each place it appears therein and substitutingtherefore the amount of “$1,000.”

 

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INWITNESS WHEREOF, Cinergy Corp. has caused this Amendment to be executed andapproved 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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