CINERGY CORP. 401(k) EXCESS PLAN
ARTICLE I
NATURE AND PURPOSE OF PLAN
1.1 Type of Plan. The name of this Plan is the Cinergy
Corp. 401(k) Excess Plan, effective January 1, 1997. The
Plan is maintained by the Company as an unfunded, non-
qualified deferred compensation plan for a select group of
the Employer's management or highly-compensated employees.
1.2 Purpose of Plan. The purpose of the Plan is to provide
a means for the payment of deferred compensation to a select
group of key senior management employees of the Employer, in
recognition of their substantial contributions to the
operation of the Employer, and to provide those individuals
with additional financial security as an inducement to them
to remain in employment with the Employer.
ARTICLE II
DEFINITIONS AND RULES OF CONSTRUCTION
2.1 Definitions. As used in the Plan, the following words
and phrases, when capitalized, have the following meanings
except when used in a context that plainly requires a
different meaning:
(a) "Account" means the record of a Participant's
total interest in the Plan.
(b) "Beneficiary" means, with respect to a
Participant, the person or persons designated pursuant
to Section 5.5 (Designation of Beneficiary) to receive
benefits under the Plan in the event of the
Participant's death.
(c) "Board of Directors" means the duly constituted
board of directors of the Company on the applicable
date.
(d) "Change in Control" means an event described in
Subsection 5.2(b) (Distribution Upon a Change in
Control).
(e) "Code" means the Internal Revenue Code of 1986, as
amended from time to time, and interpretive rules and
regulations.
(f) "Committee" means a committee composed of those
members of the Compensation Committee of the Board of
Directors who are not Participants in the Plan.
(g) "Company" means Cinergy Corp., a Delaware
Corporation, and any corporation that shall succeed to
its business and adopt the Plan.
(h) "Compensation" means, with respect to a
Participant for a Plan Year, the annual base salary
paid to the Participant by the Employer for services,
including elective contributions made by the Employer
on behalf of the Employee during the Plan Year that are
not includable in gross income under Code Section 125,
Paragraph 402(a)(8), Subsection 402(h) or Subsection
403(b). "Compensation" does not include amounts
deferred under other deferral arrangements, bonuses,
annual or long-term incentive pay, moving allowances,
living and similar allowances and imputed income.
(i) "Deferral Account" means, with respect to a
Participant, the bookkeeping account that serves as a
record of the deferrals and earnings and losses on
those deferrals credited to the Participant under the
terms of this Plan.
(j) "Deferral Agreement" means the written agreement
entered into between an Eligible Employee and the
Employer pursuant to which the Eligible Employee elects
to make deferrals under the Plan.
(k) "Effective Date" means January 1, 1997.
(l) "Eligible Employee" means a key management
Employee who is selected by the Committee as an
individual who has the opportunity to impact
significantly the annual operating success of the
Employer.
(m) "Employee" means any person employed by the
Employer on a full-time salaried basis, including
officers of the Company or a Related Employer.
(n) "Employer" means the Company and any Related Employer.
(o) "Employer Base Matching Contribution" means, with
respect to a Participant, the contribution made by the
Employer on behalf of a Participant pursuant to Section
3.3 (Employer Base Matching Contributions).
(p) "Employer Incentive Matching Contribution" means,
with respect to a Participant, the contribution made by
the Employer on behalf of a Participant pursuant to
Section 3.4 (Employer Incentive Matching
Contributions).
(q) "401(k) Plan" means The Cincinnati Gas & Electric
Company Deferred Compensation and Investment Plan or
the PSI Energy, Inc. Employees' 401(k) Savings Plan,
whichever is applicable to a Participant.
(r) "Insolvent" means, with respect to the Company,
the Company being unable to pay its debts as they are
due, or the Company being subject to a pending
proceeding as a debtor under the United States
Bankruptcy Code.
(s) "Investment Options" means, with respect to any
Plan Year, the investment options that the Committee
makes available to Participants under the Plan from
among the investment options available under the 401(k)
Plan as of the first day of the Plan Year.
(t) "Matching Account" means, with respect to a
Participant, the bookkeeping account that serves as a
record of the Employer Base Matching Contributions, the
Employer Incentive Matching Contributions and earnings
and losses on those contributions credited to the
Participant under the terms of this Plan.
(u) "Participant" means an Eligible Employee or former
Eligible Employee who has an interest in the Plan
pursuant to Section 3.2 (Election to Defer), 3.3
(Employer Base Matching Contributions) or 3.4 (Employer
Incentive Matching Contributions).
(v) "Plan" means this instrument, as amended from time
to time, and the non-qualified deferred compensation
plan so established.
(w) "Plan Year" means a calendar year commencing on or
after January 1, 1997.
(x) "Rabbi Trust" means the grantor trust that the
Company, in its sole discretion, may establish pursuant
to Subsection 4.4(b) (Accounts Unfunded) for the
deposit of funds to be used for the exclusive purpose
of paying benefits accrued under the Plan, subject to
the claims of the Company's general creditors in the
event the Company becomes Insolvent.
(y) "Related Employer" means any Employer that,
together with the Company, is under common control or a
member of an affiliated service group, as determined
under Code Subsections 414(b), (c), (m), and (o).
(z) "Termination of Employment" means, with respect to
a Participant, the cessation of the relationship of
Employer and Employee between the Participant and the
Employer for any reason other than the Participant's
death. A Participant shall not be treated as having
incurred a Termination of Employment until the
employment relationship between the Participant and all
Related Employers has terminated.
(aa) "Trustee" means the trustee of the Rabbi Trust
that the Company, in its sole discretion, may establish
pursuant to Subsection 4.4(b) (Accounts Unfunded).
(bb) "Unforeseeable Emergency" means, for the purpose of
Subsection 3.2(d) (Suspension or Cessation of
Deferrals) and Section 5.3 (Distribution Upon Financial
Emergency), with respect to a Participant or
Beneficiary, a severe financial hardship to the
Participant or Beneficiary resulting from a sudden and
unexpected illness or accident of the Participant,
Beneficiary, or his or her dependents; loss of the
Participant's or Beneficiary's property due to
casualty; or other similar extraordinary and
unforeseeable circumstances arising as a result of
events beyond the Participant's or Beneficiary's
control.
2.2 Rules of Construction. The following rules of
construction shall govern in interpreting the Plan:
(a) The provisions of this Plan shall be construed and
governed in all respects under and by the internal laws
of the State of Ohio, to the extent not preempted by
federal law.
(b) Words used in the masculine gender shall be
construed to include the feminine gender, where
appropriate, and vice versa.
(c) Words used in the singular shall be construed to
include the plural, where appropriate, and vice versa.
(d) The headings and subheadings in the Plan are
inserted for convenience of reference only and are not
to be considered in the construction of any provision
of the Plan.
(e) If any provision of the Plan shall be held to be
illegal or invalid for any reason, that provision shall
be deemed to be null and void, but the invalidation of
that provision shall not otherwise impair or affect the
Plan.
ARTICLE III
ELIGIBILITY AND PARTICIPATION
3.1 Eligibility. Participation in the Plan is limited to
Eligible Employees.
3.2 Election to Defer.
(a) Election Procedure. Within a reasonable time
before the beginning of each Plan Year, the Committee
shall provide each Eligible Employee with a Deferral
Agreement. An Eligible Employee may elect to defer his
or her compensation to the Plan by delivering a
completed Deferral Agreement to the Committee or its
designate prior to the first day of the Plan Year. On
the Deferral Agreement, the Eligible Employee shall
indicate the amount or percentage of his Compensation
to be deferred under the Plan for the Plan Year as an
elective contribution, subject to the provisions of
Subsection (b). The Eligible Employee also shall
indicate whether to contribute to the 401(k) Plan that
portion of his Compensation deferred pursuant to the
preceding sentence that he can contribute to the 401(k)
Plan for the Plan Year without exceeding the
limitations of Code Subsection 402(g), Paragraph
401(k)(3) and 401(a)(17) for the Plan Year. Subject to
Subsection (c), an election made under this Section
shall be effective as of the first day of the Plan
Year, and subject to Subsection (d), the election for
any Plan Year shall be irrevocable.
(b) Maximum Amount of Deferrals. For each Plan
Year beginning on or after the Effective Date, each
Eligible Employee may elect to defer under the Plan up
to 100% of his Compensation.
(c) New Participant Deferrals. The Committee, in
its sole discretion, may permit a new Eligible Employee
to enroll in the Plan during a Plan Year and, no later
than 30 days after becoming an Eligible Employee, make
an irrevocable prospective election to defer a portion
of his Compensation for the remainder of the Plan Year.
(d) Suspension or Cessation of Deferrals. With
the written consent of the Committee, a Participant may
suspend or cease deferrals, in whole or in part, during
the course of a Plan Year, due to an Unforeseeable
Emergency. Suspension or cessation of deferrals shall
not in any way affect a Participant's rights or
benefits with respect to amounts already deferred under
the Plan. In the event a Participant suspends or
ceases deferrals pursuant to this Subsection, the
Participant shall not be permitted to resume deferrals
before the first day of the following Plan Year or such
later date as specified by the Committee.
3.3 Employer Base Matching Contributions. If an Eligible
Employee is entitled to an employer base matching
contribution under his or her 401(k) Plan, the Employer
shall make an Employer Base Matching Contribution to the
Participant's Matching Account equal to the amount of the
Participant's employer base matching contribution computed
in accordance with the 401(k) Plan (prior to the limitation
of Code Paragraph 401(m)(2)), but using the Participant's
Compensation as defined in this Plan.
3.4 Employer Incentive Matching Contributions. If an
Eligible Employee is entitled to an employer incentive
matching contribution under his or her 401(k) Plan, the
Employer shall make an Employer Incentive Matching
Contribution to the Participant's Matching Account equal to
the amount of the Participant's employer incentive matching
contribution computed in accordance with the 401(k) Plan
(prior to the limitation of Code Paragraph 401(m)(2)), but
using the Participant's Compensation as defined in this
Plan.
3.5 Cessation of Participation. Any Participant who ceases
to be an Eligible Employee, but continues to be an Employee,
shall cease to be eligible to make deferrals or receive
contributions under this Article but shall continue to have
a Deferral Account and a Matching Account, shall continue to
be credited with earnings and losses on his Accounts under
Section 4.2 (Earnings and Losses) (until those Accounts are
fully distributed pursuant to Article V (Distribution of
Benefits)) and shall be entitled to receive benefits under
Article V (Distribution of Benefits).
ARTICLE IV
PARTICIPANTS' ACCOUNTS
4.1 Establishment of Accounts. The Committee shall create
and maintain adequate records to disclose the interest in
the Plan of each Participant and Beneficiary. Records shall
be in the form of individual bookkeeping accounts, which
shall be credited with deferrals and contributions pursuant
to Sections 3.2 (Election to Defer), 3.3 (Employer Base
Matching Contributions), and 3.4 (Employer Incentive
Matching Contributions) and earnings and losses pursuant to
Section 4.2 (Earnings and Losses), and debited with any
contributions to a 401(k) Plan pursuant to Section 4.7
(Determination and Treatment of Amounts Contributable to the
401(k) Plan) and any payments pursuant to Article V
(Distribution of Benefits). Each Participant shall have a
separate Deferral Account and Matching Account. The
Participant's interest in his Accounts shall be fully vested
at all times. Notwithstanding the preceding sentence, the
Participant's interest in his Accounts shall be subject to
the claims of the Company's general creditors in the event
the Company becomes Insolvent.
4.2 Earnings and Losses.
(a) Deemed Investment of Accounts. During each
Plan Year, a Participant's Accounts shall be credited
with investment earnings and losses as though they are
invested, in accordance with the Participant's
elections pursuant to Subsection (b), in one or more of
the Investment Options. The deemed investment of a
Participant's Accounts among the Investment Options in
accordance with the Participant's elections, is solely
the measure of the investment performance of the
Deferral Account and Matching Account. It does not give
the Participant any ownership interest in any
Investment Option, nor does it bind the Company, the
Committee, or the Trustee as to the investment of any
Rabbi Trust or any other amounts represented by the
Deferral Accounts or Matching Accounts.
(b) Election Procedure. Each Participant,
upon first becoming an Eligible Employee, may make
initial elections, on a form provided by the Committee,
to allocate his Deferral Account and his Matching
Account among the Investment Options. The Participant
may make separate elections with respect to each of his
Accounts. If the Participant fails to make an initial
election with respect to an Account, he shall be deemed
to have elected to allocate that Account to the
Fidelity Retirement Money Market Fund Investment Option
for that Plan Year. A Participant may change his
Investment Option designations (for his future
deferrals and contributions, his existing Accounts, or
both) once each Plan Year, as of the first day of the
Plan Year, by filing an appropriate election form with
the Committee by the prior December 31. Until a
Participant timely files a new investment election
form, his prior Investment Option designations shall
control.
4.3 Credits to Accounts.
(a) A Participant's deferrals pursuant to
Section 3.2 (Election to Defer) shall be credited to
his Deferral Account in terms of cash as of the date(s)
on which the deferred amount would otherwise have been
paid to the Participant or credited to his accounts
under the 401(k) Plan.
(b) The Employer Base Matching Contribution shall
be credited to a Participant's Matching Account in
terms of cash on the same date(s) as employer base
matching contributions are credited to participants'
accounts under the 401(k) Plan. An Eligible Employee
does not need to make deferrals pursuant to Section 3.2
(Election to Defer) of this Plan to receive Employer
Base Matching Contributions.
(c) The Employer Incentive Matching Contribution
shall be credited to a Participant's Matching Account
in terms of cash on the same date(s) as employer
incentive matching contributions are credited to
participants' accounts under the 401(k) Plan. An
Eligible Employee does not need to make deferrals
pursuant to Section 3.2 (Election to Defer) of this
Plan to receive Employer Incentive Matching
Contributions.
(d) Earnings and losses on the deemed investment
of the Participant's Deferral Account and Matching
Account under Section 4.2 (Earnings and Losses) shall
be credited monthly, on the last day of each month,
based on the value of the Participant's Deferral
Account and Matching Account as of the first day of the
month.
4.4 Accounts Unfunded.
(a) Accounts shall be accounting accruals, in the
names of Participants, on the Employer's books.
Accounts shall be unfunded, so that the Employer's
obligation to pay benefits under the Plan is merely a
contractual duty to make payments when due under the
Plan. The Employer's promise to pay benefits under the
Plan shall not be secured in any way, and except as
provided in Subsection (b), the Company shall not set
aside or segregate assets for the purpose of paying
amounts credited to Participants' Deferral Accounts or
Matching Accounts.
(b) Notwithstanding the provisions of
Subsection (a), the Company, in its sole discretion,
may establish a Rabbi Trust. The Employer, in its sole
discretion, may make such contributions to the Rabbi
Trust as the Committee determines are appropriate to
enable the Employer to pay benefits under the Plan.
Any Rabbi Trust established under this Section shall be
created pursuant to a written trust document that
conforms to the model form of rabbi trust agreement
approved by the Internal Revenue Service in Revenue
Procedure 92-64 (as amended from time to time).
4.5 Valuation of Deferral Accounts.
(a) Deferral Account. The value of a
Participant's Deferral Account as of any date shall
equal the dollar amount of any deferrals credited to
the Deferral Account pursuant to Section 3.2 (Election
to Defer), increased or decreased by the earnings and
losses deemed to be credited to the Deferral Account in
accordance with Section 4.2 (Earnings and Losses), and
decreased by the amount of any contributions made or to
be made from the Deferral Account to the 401(k) Plan
pursuant to Section 4.7(a) (Deferrals) and any payments
made from the Deferral Account to the Participant or
his Beneficiary pursuant to Article V (Distribution of
Benefits).
(b) Matching Account. The value of a
Participant's Matching Account as of any date shall
equal the dollar amount of any contributions credited
to the Matching Account pursuant to Sections 3.3
(Employer Base Matching Contributions) or 3.4 (Employer
Incentive Matching Contributions), increased or
decreased by the earnings and losses deemed to be
credited to the Matching Account in accordance with
Section 4.2 (Earnings and Losses), and decreased by the
amount of any contributions made or to be made from the
Matching Account to the 401(k) Plan pursuant to Section
4.7(b) (Matching Contributions) and any payments made
from the Matching Account to the Participant or his
Beneficiary pursuant to Article V (Distribution of
Benefits).
4.6 Annual Report. Within 120 days following the end of
each Plan Year, the Committee shall provide to each
Participant a written statement of the amount standing to
his credit in his Accounts as of the end of that Plan Year.
4.7 Determination and Treatment of Amounts Contributable to
the 401(k) Plan.
(a) Deferrals. As soon as administratively
feasible for each Plan Year, the Committee shall
determine the amount that each Eligible Employee
electing deferrals pursuant to Section 3.2 (Employer
Base Matching Contributions) can contribute to the
401(k) Plan for the same Plan Year without exceeding
the limitations of Code Subsection 402(g) and Code
Paragraphs 401(k)(3) and 401(a)(17) for the Plan Year.
If an Eligible Employee elected to contribute to the
401(k) Plan that portion of his deferrals that did not
exceed the determined amount, that portion shall be
transferred directly to the 401(k) Plan no later than
March 15 of the following Plan Year. Alternatively, if
the Eligible Employee elected to receive a lump sum
distribution of that portion of his deferrals that did
not exceed the determined amount, that portion shall be
distributed to him no later than March 15 of the
following Plan Year. The earnings and losses credited
to the transferred or distributed portion pursuant to
Section 4.3 (Credits to Accounts) shall remain in the
Eligible Employee's Deferral Account until distributed
pursuant to Article V (Distribution of Benefits).
(b) Matching Contributions. As soon as
administratively feasible for each Plan Year, the
Committee shall determine the amount that the Employer
can contribute as employer base matching contributions
and employer incentive matching contributions to the
401(k) Plan for the same Plan Year without exceeding
the limitations of Code Paragraph 401(m)(2) and its
interpretive regulations and Code Paragraph 401(a)(17)
for the Plan Year. If an Eligible Employee elected to
contribute to the 401(k) Plan that portion of his
Employer Base Matching Contributions and Employer
Incentive Matching Contributions that did not exceed
the determined amount, that portion shall be
transferred directly to the 401(k) Plan no later than
March 15 of the following Plan Year. Alternatively, if
the Eligible Employee elected to receive a lump sum
distribution of that portion of his Employer Base
Matching Contributions and Employer Incentive Matching
Contributions that did not exceed the determined
amount, that portion shall be distributed to him no
later than March 15 of the following Plan Year. The
earnings and losses credited to the transferred or
distributed portion pursuant to Section 4.3 (Credits to
Accounts) shall remain in the Eligible Employee's
Matching Account until distributed pursuant to
Article V (Distribution of Benefits).
ARTICLE V
DISTRIBUTION OF BENEFITS
5.1 General Distribution Rules.
(a) General Provisions. Except as otherwise
provided in Sections 5.2 (Distribution Upon a Change in
Control), Section 5.3 (Distribution Upon Financial
Emergency), and Section 5.4 (Death Benefits), a
Participant's Accounts shall be distributed to the
Participant (or to his Beneficiary in the event of his
death) as provided in this Section.
(b) Participant's Election. For each Plan Year,
a Participant may select, on a form provided by the
Committee and from among the options described in this
Section, the form for the payment of his deferrals and
contributions for the Plan Year (and any investment
earnings attributable to those deferrals and
contributions). A Participant's election for each Plan
Year shall be irrevocable, but the Participant may make
a new election for each Plan Year's deferrals and
contributions.
(1) Form of Distribution. A
Participant may elect to have his deferrals and
contributions (and attributable earnings) for a
Plan Year distributed in one of the following
forms:
(A) A lump sum payment; or
(B) Substantially equal
annual installments over a specified
number of two to ten years.
(2) Time of Distribution.
Distribution of a Participant's interest in
his Accounts shall commence no later than 30
days after the earlier of the Participant's
death or his Termination of Employment.
Subsequent installments shall be payable on
or as soon as administratively feasible
following the first business day of each
succeeding year.
(c) Default Procedure. If a Participant fails to
make an election pursuant to this Section, then, except
as otherwise provided in Section 5.2 (Distribution Upon
a Change in Control, Section 5.3 (Distribution Upon
Financial Emergency), and Section 5.4 (Death Benefits),
the Participant's Accounts (and attributable earnings)
shall be distributed in five substantially equal annual
installments commencing no later than 30 days after the
earlier of the Participant's death or his Termination
of Employment.
5.2 Distribution Upon a Change in Control.
(a) Notwithstanding any other Section, if a
Change in Control occurs, the Committee in its sole
discretion may elect to accelerate the distribution of
a Participant's Accounts so that a Participant's
Accounts shall be distributed to the Participant (or,
in the event of his death, to his Beneficiary) in a
single lump sum payment no later than 30 days after the
Change in Control occurs.
(b) As used in this Plan, a "Change in Control"
of the Company shall occur if (1) any "person" or
"group" (within the meaning of Subsection 13(d) and
Paragraph 14(d)(2) of the 1934 Act) becomes the
"beneficial owner" (as defined in Rule 13d-3 under the
1934 Act) of more than 50 percent of the then
outstanding voting stock of the Company, otherwise than
through a transaction arranged by, or consummated with
the prior approval of, the Board of Directors; (2) the
Company's shareholders approve a definitive agreement
to merge or consolidate the Company with or into
another corporation in a transaction in which neither
the Company nor any of its subsidiaries or affiliates
will be the surviving corporation, or to sell or
otherwise dispose of all or substantially all of the
Company's asset to any person or group other than the
Company or any of its subsidiaries or affiliates, other
than a merger or a sale which will result in the voting
securities of the Company outstanding prior to the
merger or sale continuing to represent at least 50
percent of the combined voting power of the voting
securities of the corporation surviving the merger or
purchasing the assets; or (3) during any period of two
consecutive years, individuals who at the beginning of
that period constitute the Board of Directors (and any
new Director whose election by the Board of Directors
or whose nomination for election by the Company's
shareholders was approved by a vote of at least two-
thirds of the Directors then still in office who either
were Directors at the beginning of that period or whose
election or nomination for election was previously so
approved) cease for any reason to constitute a majority
of the Board of Directors.
5.3 Distribution Upon Financial Emergency. A Participant
or Beneficiary, upon written petition to the Committee, may
withdraw some or all of the balance of the Participant's
Deferral Account or Matching Account if the Committee, in
its sole discretion, determines that the requested
withdrawal is on account of an Unforeseeable Emergency and
that the amount to be withdrawn does not exceed the amount
necessary to satisfy the Unforeseeable Emergency. The
balance of the Participant's Deferral Account or Matching
Account available for withdrawal shall not include any
amount that the Participant elected to contribute to the
401(k) Plan but that has not yet been transferred to the
401(k) Plan pursuant to Section 4.7 (Determination and
Treatment of Amounts Contributable to the 401(k) Plan).
Withdrawals under this Section shall not be permitted to the
extent that the Unforeseeable Emergency may reasonably be
relieved through (a) reimbursement or compensation by
insurance or otherwise, (b) liquidation of the Participant's
or Beneficiary's assets (to the extent liquidation would not
itself cause a financial hardship), or (c) suspension or
cessation of elective deferrals under this Plan or the
401(k) Plan.
5.4 Death Benefits. In the event that a Participant dies
before his Accounts are completely distributed, his
Beneficiary shall be entitled to a death benefit equal to
the amount credited to the Participant's Accounts
immediately before his death. The form and timing of the
payment of the death benefit shall be determined pursuant to
Section 5.1 (General Distribution Rules).
5.5 Designation of Beneficiary. A Participant's
Beneficiary shall be the person or persons, including a
trustee, designated by the Participant in writing pursuant
to the practices of, or rules prescribed by, the Committee,
as the recipient of any benefits payable under the Plan
following the Participant's death. To be effective, a
Beneficiary designation must be filed with the Committee
during the Participant's life on a form prescribed by the
Committee; provided, however, that finalized divorce or
marriage (other than a common law marriage) shall
automatically revoke a previously filed Beneficiary
designation, unless in the case of divorce the former spouse
was not designated as the Beneficiary or in the case of
marriage the Participant's new spouse is already the
designated Beneficiary. If the Participant designates more
than one Beneficiary, any payments under this Article to
each Beneficiary shall be made in equal shares unless the
Participant has designated otherwise, in which case the
payments shall be made in the shares designated by the
Participant. If no person has been designated as the
Participant's Beneficiary, if a Participant's Beneficiary
designation has been revoked by marriage or divorce, or if
no person designated as Beneficiary survives the
Participant, the Participant's estate shall be his
Beneficiary.
ARTICLE VI
ADMINISTRATION
6.1 Administrator. The Committee shall be the
Administrator of the Plan. All decisions of the Committee
shall be by a vote of a majority of its members and shall be
final and binding.
6.2 Notices. Any notice or filing required or permitted to
be given to the Committee under the Plan shall be sufficient
if it is in writing or hand delivered, or sent by registered
or certified mail, to any member of the Committee or its
designate. The notice or filing shall be deemed made as of
the date of delivery, or if delivery is made by mail, as of
the date shown on the postmark on the receipt for
registration or certification.
6.3 Powers and Duties of the Committee. Subject to the
specific limitations stated in this Plan, the Committee
shall have the following powers, duties, and
responsibilities:
(a) To carry out the general administration of
the Plan;
(b) To cause to be prepared all forms necessary
or appropriate for the administration of the Plan;
(c) To keep appropriate books and records;
(d) To determine amounts to be distributed to
Participants and Beneficiaries under the provisions of
the Plan;
(e) To determine, consistent with the provisions
of this instrument, all questions of eligibility,
rights, and status of Participants and Beneficiaries
under the Plan;
(f) To issue, amend, and rescind rules relating
to the administration of the Plan, to the extent those
rules are consistent with the provisions of this
document;
(g) To exercise all other powers and duties
specifically conferred upon the Committee elsewhere in
this document; and
(h) To interpret, with discretionary authority,
the provisions of this Plan and to resolve, with
discretionary authority, all disputed questions of Plan
interpretation and benefit eligibility.
ARTICLE VII
AMENDMENT AND TERMINATION
7.1 Amendment. The Company reserves the right to amend the
Plan at any time by action of the Board of Directors or the
Committee, with written notice given to each Participant in
the Plan. The Company, however, may not make any amendment
that reduces a Participant's benefits accrued as of the date
of the amendment unless the Participant consents in writing
to the amendment. Notwithstanding the foregoing, the
Company may not amend any of the provisions of Section 5.2
(Distribution Upon a Change in Control) within three years
of a Change in Control.
7.2 Termination. The Company reserves the right to
terminate the Plan, by action of the Board of Directors or
the Committee, at any time it deems appropriate. Upon
termination of the Plan, no further contribution shall be
made to the Plan. Subject to Section 5.2 (Distribution Upon
a Change in Control), distribution following termination of
the Plan shall be made at the time and under the terms and
conditions as the Company, in its sole discretion, shall
determine, which shall commence no later than the earlier of
a Participant's death or Termination of Employment.
ARTICLE VIII
MISCELLANEOUS
8.1 Relationship. Notwithstanding any other provision of
this Plan, this Plan and action taken pursuant to it shall
not be deemed or construed to establish a trust or fiduciary
relationship of any kind between or among the Company,
Participants, Beneficiaries or any other persons. The Plan
is intended to be unfunded for purposes of the Code and the
Employee Retirement Income Security Act of 1974, as amended.
The rights of Participants and Beneficiaries to receive
payment of deferred compensation under the Plan is strictly
a contractual right of payment, and this Plan does not
grant, nor shall it be deemed to grant Participants,
Beneficiaries, or any other person any interest or right to
any of the funds, property, or assets of the Employer other
than as an unsecured general creditor of the Employer.
8.2 Other Benefits and Plans. Nothing in this Plan shall
be deemed to prevent Participants from receiving, in
addition to the benefits provided for under this Plan, any
funds that may be distributable to them at any time under
any other present or future retirement or incentive plan of
the Employer.
8.3 Anticipation of Benefits. Neither Participants nor
Beneficiaries shall have the power to transfer, assign,
anticipate, pledge, alienate, or otherwise encumber in
advance any of the payments that may become due under this
Plan, and any attempt to do so shall be void. Any payments
that may become due under this Plan shall not be subject to
attachment, garnishment, execution, or be transferable by
operation of law in the event of bankruptcy, insolvency, or
otherwise.
8.4 No Guarantee of Continued Employment. Nothing
contained in this Plan or any action taken under the Plan
shall be construed as a contract of employment or as giving
any Participant any right to be retained in employment with
the Employer. The Employer specifically reserves the right
to terminate any Participant's employment at any time with
or without cause, and with or without notice or assigning a
reason, subject to the terms of any written employment
agreement between the Participant and the Employer.
8.5 Waiver of Breach. The Company's or the Committee's
waiver of any Plan provision shall not operate or be
construed as a waiver of any subsequent breach by the
Participant.
8.6 Protective Provisions. Each Participant shall
cooperate with the Company and the Committee by furnishing
any and all information requested by the Company or the
Committee in order to facilitate the payment of benefits
under the Plan, and by taking any other relevant action as
may be requested by the Company or the Committee. If any
Participant refuses so to cooperate, the Company shall have
no further obligation to the Participant or his Beneficiary
under this Plan, other than to distribute to the Participant
the cumulative deferrals he has already made, and the
cumulative contributions that have been made on his behalf,
pursuant to the Plan; provided, however, that the Committee
may determine that benefits may be payable in an amount
reduced to compensate the Company for any loss, cost,
damage, or expense suffered or incurred by the Company as a
result in any way of the Participant's action or failure to
act.
8.7 Benefit. This Plan shall be binding upon and inure to
the benefit of the Employer and its successors and assigns.
8.8 Responsibility for Legal Effect. Neither the Committee
nor the Company makes any recommendations or warranties,
express or implied, or assumes any responsibility concerning
the legal context or other implications or effects of this
Plan.
8.9 Tax Withholding. The Employer shall withhold from any
deferrals or from any payment made under the Plan such
amount or amounts as may be required by applicable federal,
State, or local laws.
Cinergy Corp. has caused this document to be executed by its
duly authorized officers, as of the ____ day of
_________________, 1996.
CINERGY CORP.
By: JAMES E. ROGERS
James E. Rogers
Vice Chairman, President and
Chief Executive Officer
Dated: December 30, 1996
APPROVED:
By: CHERYL M. FOLEY
Cheryl M. Foley
Vice President, General Counsel
and Corporate Secretary
Dated: December 30, 1996