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 Cheryl M. Foley
(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 August 1,
1989;
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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Cheryl M. Foley