SECOND AMENDMENT TO EMPLOYMENT AGREEMENT
This Second Amendment to Employment Agreement (the "Second Amendment")
dated effective January 29, 1997, is by and among Cinergy Corp., a Delaware
corporation ("Cinergy"), Cinergy Services, Inc., a Delaware corporation
("Cinergy Services"), The Cincinnati Gas & Electric Company, an Ohio corporation
("CG&E"), PSI Energy, Inc., an Indiana corporation ("PSI"), and Larry E. Thomas
(the "Executive"). Cinergy, Cinergy Services, CG&E, and PSI will sometimes be
referred to in this Second Amendment collectively as the "Corporation".
WHEREAS, the Executive has been employed by the Corporation since October
5, 1967;
WHEREAS, the Executive has been employed by the Corporation pursuant to
an Employment Agreement dated effective as of October 24, 1994 (the "Employment
Agreement"), as amended by a First Amendment to Employment Agreement dated
effective as of October 24, 1994 (the "First Amendment");
WHEREAS, on January 27, 1997, the Board of Directors of Cinergy adopted
a resolution that directed the Corporation to amend all outstanding employment
agreements, including the Executive's Employment Agreement, to delete the
existing definition of "change in control" of Cinergy as found in those
agreements and substitute therefor the same definition of "change in control" of
Cinergy as adopted that date for inclusion in various compensation and benefit
plans of the Corporation;
NOW, THEREFORE, the parties have agreed to enter into this Second
Amendment which amends the Employment Agreement as follows:
1. The substantive provisions of Sections 4 (f) and (g) are deleted in their
entirety and replaced with the following:
"f. Change in Control. A 'Change in Control' shall be deemed to have occurred if
any of the following events occur after the Effective Date:
(i) Any 'person' or 'group' (within the meaning of Subsection 13(d) and
Paragraph 14(d)(2) of the Securities Exchange Act of 1934 (the '1934 Act')
is or becomes the beneficial owner (as defined in Rule 13d-3 under the 1934
Act), directly or indirectly, of securities of Cinergy (not including in
the securities beneficially owned by such Person any securities acquired
directly from Cinergy or its affiliates) representing fifty percent (50%)
or more of the combined voting power of Cinergy's then outstanding
securities, excluding any person who becomes such a beneficial owner in
connection with a transaction described in clause (1) of paragraph (ii)
below; or
(ii) There is consummated a merger or consolidation of Cinergy or any direct or
indirect subsidiary of Cinergy with any other corporation , other than (1)
a merger or consolidation which would result in the voting securities of
Cinergy outstanding immediately prior to such merger or consolidation
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity or any parent
thereof) at least fifty percent (50%) of the combined voting power of the
securities of Cinergy or such surviving entity or any parent thereof
outstanding immediately such merger or consolidation, or (2) a merger or
consolidation effected to implement a recapitalization of Cinergy (or
similar transaction) in which no person is or becomes the beneficial owner,
directly or indirectly, of securities of Cinergy (not including in the
securities beneficially owned by such person any securities acquired
directly from Cinergy or its affiliates other than in connection with the
acquisition by Cinergy or its affiliates of a business) representing
twenty-five percent (25%) or more of the combined voting power of Cinergy's
then outstanding securities; or
(iii)During any period of two consecutive years, individuals who at the
beginning of that period constitute Cinergy's Board of Directors and any
new director (other than a director whose initial assumption of office is
in connection with an actual or threatened election contest, including but
not limited to a consent solicitation, relating to the election of
directors of Cinergy) whose appointment or election by Cinergy's
shareholders was approved or recommended by a vote of at least two-thirds
(2/3) of the directors then still in office who either were directors at
the beginning of that period or whose appointment, election or nomination
for election was previously so approved or recommended cease for any reason
to constitute a majority of Cinergy's Board of Directors; or
(iv) The shareholders of Cinergy approve a plan of complete liquidation or
dissolution of Cinergy or there is consummated an agreement for the sale or
disposition by Cinergy of all or substantially all of Cinergy's assets,
other than a sale or disposition by Cinergy of all or substantially all of
Cinergy's assets to an entity, at least sixty percent (60%) of the combined
voting power of the voting securities of which are owned by shareholders of
Cinergy in substantially the same proportions as their ownership of Cinergy
immediately prior to such sale.
g. Person. 'Person' shall have the meaning given in Section 3(a)(9) of the 1934
Act, as modified and used in Sections 13(d) and 14(d) thereof; however, a Person
shall not include:
(i) The Corporation or any of its subsidiaries;
(ii) A trustee or other fiduciary holding securities under an employee benefit
plan of Cinergy or any of its subsidiaries;
(iii)An underwriter temporarily holding securities pursuant to an offering of
such securities; or
(iv) A corporation owned, directly or indirectly, by the stockholders of Cinergy
in substantially the same proportions as their ownership of stock of the
Corporation."
2. All other provisions of the Employment Agreement and First Amendment remain
unchanged by this Second Amendment.
IN WITNESS WHEREOF, the Executive and the Corporation have caused this
Second Amendment to Employment Agreement to be executed effective as of the day
and year first above written.
CINERGY CORP., CINERGY SERVICES, INC.,
THE CINCINNATI GAS & ELECTRIC COMPANY,
and PSI ENERGY, INC.
By: _________________________
James E. Rogers
Vice Chairman and
Chief Executive Officer
EXECUTIVE
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Larry E. Thomas