EXHIBIT 10-51
DTE ENERGY COMPANY
EXECUTIVE SUPPLEMENTAL RETIREMENT PLAN
EFFECTIVE JANUARY 1, 2001
TABLE OF CONTENTS
Section Page
PREAMBLE .......................................................................................1
SECTION 1. TITLE, PURPOSE AND EFFECTIVE DATE...............................................................1
1.01. Title........................................................................................1
1.02. Purpose......................................................................................1
1.03. Effective Date...............................................................................2
SECTION 2. DEFINITIONS.....................................................................................2
2.01. Account......................................................................................2
2.02. Affiliated Company...........................................................................2
2.03. Anniversary Year.............................................................................2
2.04. Annual Cash Bonus............................................................................2
2.05. Base Salary..................................................................................2
2.06. Beneficiary..................................................................................2
2.07. Board........................................................................................2
2.08. Cash Balance Plan............................................................................2
2.09. Code.........................................................................................2
2.10. Committee....................................................................................2
2.11. Company......................................................................................3
2.12. Company's Accountants........................................................................3
2.13. Company's Actuaries..........................................................................3
2.14. Compensation.................................................................................3
2.15. Compensation Credit..........................................................................3
2.16. DTE..........................................................................................3
2.17. ERISA........................................................................................3
2.18. FICA.........................................................................................3
2.19 Frozen MSBP Participant......................................................................3
2.20. Frozen MSBP Participant's Benefit............................................................3
2.21. Grandfathered MSBP Participant...............................................................3
2.22. Grandfathered MSBP Retiree...................................................................3
2.23. Grandfathered SDRIP Participant..............................................................3
2.24. Grandfathered SDRIP Nonactive Participant....................................................4
2.25. Investment Credit............................................................................4
2.26. Opening Balance..............................................................................4
2.27. Participant..................................................................................4
2.28. Plan.........................................................................................4
2.29. Plan Year....................................................................................4
2.30. Spouse.......................................................................................4
2.31. Vested Account...............................................................................5
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SECTION 3. PARTICIPATION...................................................................................5
3.01. Designation By Committee.....................................................................5
3.02. Effective Date of Participation..............................................................5
3.03. Revocation of Designation....................................................................5
SECTION 4. ACCOUNTS AND EARNINGS...........................................................................5
4.01. Establishment of Accounts....................................................................5
4.02. Election of Investment Options...............................................................6
4.03. No Requirement to Fund.......................................................................6
SECTION 5. GRANDFATHERED AND FROZEN MSBP BENEFITS..........................................................6
5.01. Grandfathered and Frozen MSBP Participant's MSBP Benefit.....................................6
5.02. Election for Grandfathered MSBP Participants.................................................7
5.03. No Election for Frozen MSBP Participants.....................................................7
SECTION 6. FORM AND TIMING OF PAYMENT......................................................................8
6.01. Distribution of Account......................................................................8
6.02. Timing of Distributions......................................................................8
6.03. Form of Distributions........................................................................8
6.04. Change In Distribution Option................................................................8
SECTION 7. VESTING OF BENEFITS.............................................................................8
7.01. General......................................................................................8
7.02. Rehired Participants.........................................................................9
7.03. Redesignated Participants....................................................................9
SECTION 8. SELECTION OF AND PAYMENTS TO A BENEFICIARY.....................................................10
8.01. Beneficiary Designation.....................................................................10
8.02. Change in Beneficiary.......................................................................10
8.03. Survivor Benefit............................................................................10
SECTION 9. TAX WITHHOLDING................................................................................10
SECTION 10. ADMINISTRATION OF THE PLAN....................................................................10
10.01. Duties and Power............................................................................10
10.02. Benefit Statements..........................................................................11
10.03. Right to Accelerate.........................................................................11
SECTION 11. AMENDMENT, SUSPENSION, AND TERMINATION........................................................11
11.01. Right to Amend or Terminate.................................................................11
11.02. Right to Suspend............................................................................11
11.03. Partial ERISA Exemption.....................................................................11
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SECTION 12. MISCELLANEOUS.................................................................................11
12.01. Unfunded Plan...............................................................................11
12.02. No Right to Continued Employment............................................................12
12.03. Prohibition Against Alienation..............................................................12
12.04. Savings Clause..............................................................................12
12.05. Payment of Benefit of Incompetent...........................................................12
12.06. Spouse's Interest...........................................................................12
12.07. Successors..................................................................................12
12.08. Gender, Number and Heading..................................................................12
12.09. Legal Fees and Expenses.....................................................................12
12.10. Choice of Law...............................................................................13
12.11. Affiliated Employees........................................................................13
12.12. Plan Document...............................................................................13
SECTION 13. ARBITRATION...................................................................................13
SECTION 14. CHANGE IN CONTROL PROVISIONS..................................................................14
14.01. General.....................................................................................14
14.02. Immediate Vesting...........................................................................14
14.03. Transfer to Rabbi Trust.....................................................................14
14.04. Lump Sum Payments...........................................................................14
14.05. Joint and Several Liability.................................................................14
14.06. Dispute Procedures..........................................................................15
14.07. Definition of Change in Control.............................................................15
Appendix A -- MSBP Document
Appendix B -- Frozen MSBP Participants
Appendix C -- Grandfathered MSBP Participants
Appendix D -- Grandfathered SDRIP Participants
Appendix E -- Grandfathered SDRIP Participants -- 100% Vested as of June 1, 2002
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DTE ENERGY COMPANY
EXECUTIVE SUPPLEMENTAL RETIREMENT PLAN
Effective January 1, 2001
PREAMBLE
Benefits under the DTE Energy Company Executive Supplemental Retirement
Plan ("Plan") are available to designated executives and key management
employees of DTE Energy Company and its Affiliated Companies. DTE Energy Company
has established this Plan to benefit executives of DTE Energy Company and its
Affiliated Companies in a manner that will be in the best interest of DTE Energy
Company and its shareholders.
The Plan replaces The Detroit Edison Company Management Supplemental
Benefit Plan ("MSBP") and transfers all benefits under the MSBP to the Plan as
of January 1, 2001. The Plan provides executives who are Grandfathered MSBP
Participants (other than Frozen MSBP Participants) as of January 1, 2001, the
opportunity upon termination to choose to have their benefit from the Plan
calculated under the provisions of the MSBP, as modified by this Plan, or the
provisions of this Plan. The MSBP is included as Appendix A. The provisions set
forth in Appendix A continue to apply unless specifically modified under the
provisions of the Plan.
The Plan also replaces the MCN Energy Group Supplemental Death Benefit
and Retirement Income Plan ("SDRIP") and transfers all benefits under the SDRIP
for active Grandfathered SDRIP Participants to the Plan as of June 1, 2002.
The Plan also replaces the Key Employee Deferred Compensation Plan
("KEDC")which is attached as Appendix F.
Any employee who was a participant in the MSBP, SDRIP or KEDC and:
(1) Was receiving benefits under such prior plan as of
December 31, 2000 (May 31, 2002 for the SDRIP), or
(2) Had terminated employment with the Company on or before
December 31, 2000 (May 31, 2002 for the SDRIP) and was due a
benefit at a later date
shall continue to be paid (or shall be paid) benefits under the provisions of
such prior plan.
SECTION 1.
TITLE, PURPOSE AND EFFECTIVE DATE
1.01. Title. The title of this Plan shall be the "DTE Energy Company
Executive Supplemental Retirement Plan" and shall be referred to in this
document as the "Plan."
1.02. Purpose. The purpose of the Plan is to promote the success of DTE
Energy Company (hereinafter referred to as "DTE") by providing the ability to
attract and retain certain executives by providing such designated executives
with additional retirement benefits.
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It is intended that this Plan provide deferred compensation
for "a select group of management or highly compensated employees" within the
meaning of sections 201, 301 and 401 of the Employee Retirement Income Security
Act of 1974, as amended (hereinafter referred to as "ERISA") and, therefore, to
be exempt from the provisions of Parts 2, 3 and 4 of Title I of ERISA.
1.03. Effective Date. The Plan shall be effective January 1, 2001.
SECTION 2.
DEFINITIONS
The following words and terms, as used in this Plan, shall have the
meanings set forth below, unless a clearly different meaning is required by the
context in which the word or phrase is used.
2.01. "ACCOUNT" means, except as to a Frozen MSBP Participant's
Benefit, the hypothetical record or bookkeeping entry maintained by the Company
reflecting each Participant's Opening Balance (if any), Compensation Credits,
credited earnings and losses, and distributions under the Plan. The term
"Account" should not be construed as an actual segregation of assets for the
benefit of any particular Participant.
2.02. "AFFILIATED COMPANY" means any corporation while such corporation
is a member of the same controlled group of corporations (within the meaning of
Code section 414(b)) as DTE or any other employing entity while such entity is
under common control (within the meaning of Code section 414(c)) with DTE.
2.03. "ANNIVERSARY YEAR" means the 12-month period of active service
beginning with the date an employee is originally designated a Participant. For
purposes of a Grandfathered MSBP Participant, an Anniversary Year means the
12-month period beginning with the date an employee was named a Group I or II
participant in the MSBP.
2.04. "ANNUAL CASH BONUS" means the compensation payable in the Plan
Year under the DTE Energy Company Annual Incentive Plan, any similar annual
incentive plan of an Affiliated Company, or any successor plans thereto.
2.05. "BASE SALARY" means base salary payable prior to reduction for
any pre-tax deferrals under Code sections 125, 129 or 401(k) and prior to
reduction for any payroll deduction for taxes or any other purpose. "Base
Salary" shall exclude any bonus, long-term awards, fringe benefit or other form
of remuneration.
2.06. "BENEFICIARY" means the person, persons or entity designated in
writing by the Participant, on forms provided by the Company, to receive
distribution of certain death benefits payable under the Plan in the event of
the Participant's death.
2.07. "BOARD" means the Board of Directors of DTE Energy Company.
2.08. "CASH BALANCE PLAN" means any cash balance defined benefit plan
maintained by the Company or an Affiliated Company which is intended to be
qualified under Code section 401(a).
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2.09. "CODE" means the Internal Revenue Code of 1986, as amended, and
any regulations issued thereunder. References to any section or subsection of
the Code includes reference to any comparable or succeeding provisions of any
legislation which amends, supplements or replaces such section or subsection.
2.10. "COMMITTEE" means the Organization and Compensation Committee of
the Board. The Committee is responsible for the administration of the Plan and
may delegate such administrative responsibilities under this Plan.
2.11. "COMPANY" means DTE Energy Company or its successors and
assigns.
2.12. "COMPANY'S ACCOUNTANTS" means the independent accountant or
accountants engaged by the Company and, if selected or changed following a
Change in Control, approved by the trustee of the trust established in
accordance with Section 14.
2.13. "COMPANY'S ACTUARIES" means the independent actuary or actuaries
engaged by the Company and, if selected or changed following a Change in
Control, approved by the trustee of the trust established in accordance with
Section 14.
2.14. "COMPENSATION" for periods on and after January 1, 2001, means a
Participant's Base Salary plus Annual Cash Bonus.
2.15. "COMPENSATION CREDIT" means an amount equal to 9% of the
Participant's Compensation. Such credit shall be computed and credited to the
Participant's Account on a monthly basis as of the last business day of each
month. In order to receive a Compensation Credit for a given month, the
Participant must be actively employed by the Company or Affiliated Company on
such last business day of the month.
2.16. "DTE" means DTE Energy Company or its successors and assigns.
2.17. "ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any regulations issued thereunder. References to any
section or subsection of ERISA includes references to any comparable or
succeeding provisions of any legislation that amends, supplements or replaces
such section or subsection.
2.18. "FICA" means the tax applied under the Federal Insurance
Contributions Act as set forth in Chapter 21, Subtitle C, of the Code, and any
regulations issued thereunder.
2.19. "FROZEN MSBP PARTICIPANT" means an employee of DTE on December
31, 2000 who was participating in the MSBP on December 31, 2000 and is included
in Appendix B.
2.20. "FROZEN MSBP PARTICIPANT'S BENEFIT" means the value of the
Participant's MSBP benefit. Such benefit shall be calculated in accordance with
section 5.01. In order to receive this benefit, the Participant must have
attained age 55 and have completed at least 10 years of Company service upon
termination, retirement, disability or death.
2.21. "GRANDFATHERED MSBP PARTICIPANT" means an active employee of DTE
on December 31, 2000 who was participating in the MSBP on December 31, 2000 and
is included in Appendix C.
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2.22. "GRANDFATHERED MSBP RETIREE" means a former employee of DTE or an
Affiliated Company who, on December 31, 2000, was a retired participant
receiving benefits from the MSBP. The benefits payable to a Grandfathered MSBP
Retiree shall be identical in all respects to the participant's benefit under
the MSBP.
2.23. "GRANDFATHERED SDRIP PARTICIPANT" means an active executive who
was participating in the SDBRIP on May 31, 2002 and is included in Appendix D or
E.
2.24. "GRANDFATHERED SDRIP NONACTIVE PARTICIPANT" means a former
employee of DTE or MCN Energy Group who, on May 31, 2002, was a terminated
participant receiving or eligible to receive benefits from the SDRIP. The
benefits payable to a Grandfathered SDBRIP Retiree shall be identical in all
respects to the participant's benefit under the provisions of the SDRIP.
2.25. "INVESTMENT CREDIT" means the hypothetical earnings, gains or
losses posted to the Participant's Account as if the Participant's Account was
invested in specific investment funds, as directed by the Participant, that
reflect the funds offered under the DTE Energy Company Savings and Stock
Ownership Plan, or its successor thereto. Prior to January 1, 2001, the
Investment Credit will be equal to 7% per year, compounded monthly. From January
1, 2001 through November 1, 2002 or the conversion to a third-party
administrator, the Investment Credit will be equal to 9.5% per year, compounded
monthly.
2.26. "OPENING BALANCE" means:
(a) With respect to a Grandfathered MSBP Participant, the
hypothetical value that would have accumulated if the ESRP had been in effect
for such participant from the date he/she was named a Group I or II participant
in the MSBP through January 1, 2001 ("Transition Period"). For purposes of the
Compensation Credits during such Transition Period only, the term Compensation
shall mean base pay, lump sums in lieu of annual base pay increases, and amounts
awarded under the Shareholder Value Improvement Plan (`SVIP') and the Executive
Incentive Plan (`EIP'). SVIP and EIP awards for years before 1994 will be
treated as paid in full on the date the first payment was made; otherwise, SVIP
and EIP awards will be included on the date of payment. Compensation includes
amounts deferred under any qualified or nonqualified deferred compensation plan
sponsored by DTE or any Affiliated Company. An Investment Credit equal to 7% per
year, compounded monthly, shall be applied until December 31, 2000 and 9.5% per
year compounded monthly from January 1, 2001 to the later of November 1, 2002 or
the conversion to a third-party administrator.
(b) With respect to a Grandfathered SDRIP Participant, the
value of such participant's SDRIP account as of May 31, 2002 under Option A of
the SDRIP present valued at a 7% discount rate, plus Compensation Credits and
Investment Credits from June 1, 2002 until the later of November 1, 2002 or the
conversion to a third-party administrator.
(c) With respect to a Participant who is not a Grandfathered
MSBP or SDRIP Participant hired prior to the later of November 1, 2002 or the
date of conversion to a third-party administrator, an amount equal to
Compensation Credits and Investment Credits until the later of November 1, 2002
or the conversion to a third-party administrator.
2.27. "PARTICIPANT" means an executive of DTE or an Affiliated Company
who has been designated by the Committee as eligible to participate in the Plan.
4
2.28. "PLAN" means the DTE Energy Company Executive Supplemental
Retirement Plan, as described herein and as amended.
2.29. "PLAN YEAR" means the period beginning January 1 and ending
December 31 of each year.
2.30. "SPOUSE" means an individual who is legally married to a
Participant under the laws of the State in which the Participant resides, on the
day immediately preceding the Participant's date of death.
2.31. "VESTED ACCOUNT" means the amount that the Participant is
entitled to receive upon termination of service for any reason with the Company
or an Affiliated Company. Vesting in a Participant's Account is governed by
Section 7 herein.
SECTION 3.
PARTICIPATION
3.01. Designation By Committee. An employee may only become a
Participant by designation by the Committee. Such employee must be an individual
who is included within a "select group of management or highly compensated
employees," within the meaning of Title I of ERISA. In addition, an employee who
is a Grandfathered MSBP Participant, a Frozen MSBP Participant or a
Grandfathered SDBRIP Participant shall also be a participant in the Plan.
3.02. Effective Date of Participation. (a) Newly Designated
Participants. An Employee shall become a Participant as of the later of January
1, 2001 or the date he or she is first designated as a Participant.
(b) Grandfathered MSBP Participants. A Grandfathered MSBP
Participant shall be deemed to be a participant under the Plan as of the date he
or she was named a Group I or II participant in the MSBP.
(c) Grandfathered SDBRIP Participants. A Grandfathered SDBRIP
Participant shall become a Participant as of June 1, 2002.
3.03. Revocation of Designation. A Participant whose designation is
revoked prior to the Participant's retirement, death, termination or disability
shall not receive any Compensation Credits under the Plan subsequent to the date
of such revocation. However, all monies that are deemed to be in the
Participant's Account as of the date of revocation shall continue to be
reflected in the Participant's Account, including earnings, gains and losses
based on the Participant's Deemed Investment elections under section 4.02, until
the Participant's retirement, death, termination or disability.
If a Participant whose designation has been revoked under this section
is subsequently redesignated as a Participant under section 3.01, the provisions
of section 7.03 shall govern.
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SECTION 4.
ACCOUNTS AND EARNINGS
4.01. Establishment of Accounts. The Committee shall establish a
hypothetical bookkeeping Account for each Participant. The initial value of a
Participant's Account shall be zero, except for a Grandfathered MSBP Participant
or a Grandfathered SDBRIP Participant, whose initial Account balance shall be
established as an Opening Balance. The establishment of an opening balance other
than that stated in the previous sentence or awarding of additional service for
purposes of vesting under Section 7 shall not be permitted under the Plan.
Upon the conversion to a third-party administrator, a Participant's Account
balance shall be deemed to be invested in a money market investment fund unless
and until the Participant makes his or her investment elections in accordance
with section 4.02. Compensation Credits shall be credited to a Participant's
Account as of the last business day of each month.
4.02. Election of Investment Options. Each Participant shall, by filing
an election with the Committee, in a format approved by the Committee, elect the
investment options in which the Participant's Account is deemed to be invested
("Deemed Investments"). Investment options available under the Plan and the
ability to change such investment election shall mirror those available under
the DTE Energy Company Savings and Stock Ownership Plan (or any successor plan
thereto), however, investment options may be changed at the discretion of the
Committee.
4.03. No Requirement to Fund. The Company shall have sole discretion
whether or not to invest any of the Company's funds (whether or not in trust) in
a manner that reflects the Deemed Investments or in any other manner. If and to
the extent the Company chooses to invest in any Deemed Investment, assets
acquired by the Company shall remain the sole property of the Company, subject
to the claims of its general creditors, and shall not be deemed to form part of
the Participant's Account. Nothing herein, however, shall preclude the Company
from segregating assets that are intended to be a source of payment of benefits
from the Plan. The Company shall not be required to fund its obligations in any
manner and shall not be required to invest in any particular investment,
including any Deemed Investment fund. The Company may, without limitation,
purchase life insurance or any security or other property with respect to any or
all of its obligations under the Plan. Participants shall have no right, title
or interest in any assets held by the Company (or any trust) by reason of a
Participant's participation in this Plan.
SECTION 5.
GRANDFATHERED AND FROZEN MSBP BENEFITS
5.01. Grandfathered and Frozen MSBP Participant's MSBP Benefit. (a)
General. In computing a Grandfathered or Frozen MSBP Participant's MSBP benefit,
such benefit shall be calculated under the provisions described in Appendix A;
however, for any years of participation after December 31, 2000, Final Average
Compensation shall be computed using a hypothetical 10% bonus amount (based on
the Participant's base salary as of the end of the year of computation) in lieu
of any payments actually paid under the Shareholder Value Improvement Plan (or
any successor plan thereto). Such hypothetical bonus shall be deemed credited as
of March 1 in the year after the year during which the bonus was earned.
6
(b) Target Percent of Average Final Compensation. Participants
who have been awarded service under the MSBP must certify any qualified plan
retirement income that the Participant has received, is receiving or will
receive from a previous employer. Payments from the MSBP to Participants with
awarded service shall be reduced by the non-contributory portion of such
retirement income from a previous employer.
(c) Cash Balance Participation. If a Grandfathered or Frozen
MSBP Participant participates in the cash balance portion of the DTE Energy
Company Retirement Plan (or any successor plan thereto), such Participant's MSBP
benefit shall be computed in accordance with Appendix A, except that the
calculation under Step 5 of the Payment Calculation shall be modified such that
the Monthly Target Benefit Amount under the Guaranteed Term Plus Life payment
option will be determined as one-twelfth of the following: Step 2 plus Step 4
minus the Cash Balance Benefit under the DTE Energy Retirement Plan expressed as
a Straight Life Annuity option at early retirement. Under Step 2 as modified,
the term "Retirement Allowance Factor" shall mean the "multiplier (or
multipliers, if applicable) used in the basic formula of the DTE Energy Company
Retirement Plan for Non-Cash Balance Participants."
(d) Promotion From Group II. If a Participant who had a
designation of Group II under the MSBP as of January 1, 2001, is subsequently
promoted to Group I, such Participant's MSBP benefit at termination shall be
calculated with the Group I target percentage of average final compensation and
Group I service index.
(e) Promotion From Group III. If a Frozen MSBP Participant who
had a designation of Group III under the MSBP as of January 1, 2001, is
subsequently promoted and designated a Group II or Group I Participant, such
Participant's MSBP benefit at termination will be calculated with the target
percentage of average final compensation and service index reflective of the
Participant's Group at termination. Such Participant's ESRP Account shall be
initialized as of the date the Participant's promotion to Group I or Group II is
effective ("Promotion Date"). As of the Participant's Promotion Date, he or she
shall be treated as a Grandfathered MSBP Participant for purposes of Section
5.02.
5.02. Election for Grandfathered MSBP Participants. A Grandfathered
MSBP Participant may be eligible to elect to receive one of the following
benefits of this Plan:
(a) the value of the Participant's Account distributed in
accordance with his or her distribution election as
of the Participant's last day of active employment
with the Company or Affiliated Company; or
(b) the value of the Participant's MSBP benefit
calculated under section 5.01. In order to elect this
option (b), the Participant must have attained age 55
and have completed at least 10 years of Company
service as of his or her last day of active
employment with the Company or Affiliated Company.
Such election shall be made no later than the Participant's last day of
active employment with the Company or Affiliated Company. If a Grandfathered
MSBP Participant does not make a timely election under this section, such
Participant shall be deemed to have made the election described in subsection
(a) above as of his or her termination date.
If a Grandfathered or Frozen MSBP Participant makes an election to have
his or her benefit calculated in accordance with Section 5.02(b) and such
Participant survives his or her designated
7
beneficiary prior to full payment of the benefit, the Participant shall continue
to receive the benefit as originally calculated. There shall be no pop-up
feature under this Plan.
5.03. No Election for Frozen MSBP Participants. A Frozen MSBP
Participant shall not have an election as described in section 5.02. The benefit
available to a Frozen MSBP Participant shall be calculated as described in
section 5.01(a) or (b).
SECTION 6.
FORM AND TIMING OF PAYMENT
6.01. Distribution of Account. The Company shall distribute each
Participant's Vested Account in accordance with the Participant's distribution
election unless the Plan provides otherwise. The distribution election shall
provide for payment in either (i) annual installments over a period not less
than two years and not more than 15 years, in one-year increments, or (ii) a
lump sum distribution. If no distribution election is on file with the Company,
the Participant's Vested Account shall be distributed in a single lump sum.
6.02. Timing of Distributions. A lump sum distribution or the first
annual installment shall be made as of the March 1 of the plan year following
the year of termination of service with the Company or an Affiliated Company.
Subsequent annual installments shall be made each following March 1 of the
installment period. Timing of a distribution due to a Participant's death shall
be governed by Section 8.03.
6.03. Form of Distributions. (a) Annual Installments. The distribution
to a Participant shall be paid in cash. The initial annual installment
distribution shall be determined by dividing the value of the Participant's
Account, determined as of December 31 of the Plan Year in which the
Participant's employment terminated by the number of installment payments to be
made. The amount distributed to the Participant thereafter shall be recalculated
each year to reflect changes in the Participant's Account through December 31 of
such subsequent calendar year and the remaining number of installment payments
to be made. Earnings and losses based on the Deemed Investments shall be
credited to the Participant's Account through December 31 of each Plan Year in
which the Participant has an Account balance.
(b) Distribution of Small Amounts. Notwithstanding a Participant's
distribution election, if a Participant's Vested Account is less than or equal
to $10,000 as of any December 31, the Participant's Account shall be paid in a
single lump sum.
6.04. Change In Distribution Option. A Participant may change the
distribution election previously selected by submitting a revised distribution
election to the Committee. A change in time or manner of any distribution,
however, shall be effective only if the Vice President, Human Resources receives
the revised distribution election while the Participant is actively employed by
the Company or an Affiliated Company.
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SECTION 7.
VESTING OF BENEFITS
7.01. General. (a) A Participant, other than a Grandfathered MSBP or
SDRIP Participant, shall vest 20% per Anniversary Year in his or her Account
("Vesting Service"). There is no partial vesting for a portion of an Anniversary
Year. A Participant's Vested Percentage shall equal the product of (i) 20% and
(ii) the Participant's number of Anniversary Years as of the date of his or her
termination, retirement, death or disability.
(b) Grandfathered MSBP Participant. A Grandfathered MSBP
Participant shall vest 20% per Anniversary Year in his or her Account beginning
with the year in which the employee was named a Group I or II participant in the
MSBP. A Participant's Vested Percentage shall equal the product of (i) 20% and
(ii) the Participant's number of Anniversary Years as of the date of his or her
termination, retirement, death or disability.
(c) Grandfathered SDRIP Participant. A Grandfathered SDRIP
Participant, except for those Participants named on Appendix E, shall vest 50%
in his or her Account as of June 1, 2003 and shall be 100% vested as of June 1,
2004. Participants listed on Appendix E shall be 100% vested as of June 1, 2002.
7.02. Rehired Participants. (a) Vesting. If a Participant terminates
employment with the Company or Affiliated Company prior to becoming 100% vested,
the Participant's Account shall be distributed in accordance with section 6 and
the nonvested portion of the Account shall be forfeited. If such Participant is
subsequently rehired by the Company or Affiliated Company and is designated a
Participant in accordance with section 3, any Account value forfeited upon the
prior termination shall not be reinstated.
However, if the Participant has not incurred consecutive
one-year Breaks in Service equal to or in excess of (i) 5 years, or (ii) the
aggregate number of years of Vesting Service the Participant had earned before
such Break in Service, the Participant's Anniversary Date shall be adjusted to
take into consideration such Participant's prior period of active service during
which he or she was considered to be a Participant in the Plan ("Adjusted
Anniversary Date"). A new Account shall be established for such rehired
Participant for the purpose of recording Compensation Credits and Investment
Credits beginning after such Participant's rehire date reflective of his or her
Vested Percentage which shall be recomputed to include the Participant's
Adjusted Anniversary Date.
(b) Pay Status of Prior Benefit. If the rehired Participant is
receiving annual distributions of his or her Account as it existed on the date
of the Participant's termination ("Prior Account"), such Prior Account (i) will
remain separate from the Account established as described in Section 7.02(a),
(ii) will retain the Vesting Percentage applied as of the Participant's date of
termination, and (iii) payments to the Participant will continue upon the
Participant's return to employment with the Company or Affiliated Company.
7.03. Redesignated Participants.If a Participant's designation as a
Participant had been revoked under section 3.03, prior to becoming 100% vested,
the Participant's Account shall continue to be credited with earnings, gains and
losses based on the deemed investment of the Account. If such Participant is
subsequently redesignated as a Participant under section 3.01, such
Participant's vested status shall be determined based on the Participant's
Anniversary Years and his Account shall be adjusted to reflect the revised
vested percentage.
9
SECTION 8.
SELECTION OF AND PAYMENTS TO A BENEFICIARY
8.01. Beneficiary Designation. A Participant shall designate a
Beneficiary on a form provided by the Vice President, Human Resources, or his or
her designee, for the purpose of designating a Beneficiary. If a Participant has
not designated a Beneficiary, or if a designated Beneficiary is not living or in
existence at the time of a Participant's death, any death benefits payable under
the Plan shall be paid to the Participant's Spouse, if then living, and if the
Participant's Spouse is not then living, to the Participant's estate.
8.02. Change in Beneficiary. A Participant may change the designated
Beneficiary from time to time by filing a new written designation with the Vice
President, Human Resources, or his or her designee. Such designation shall be
effective upon receipt by the Vice President, Human Resources, or his or her
designee.
8.03. Survivor Benefit. If a Participant dies with an Account balance
under this Plan, his Beneficiary shall be entitled to receive a distribution of
the Participant's Account. The Beneficiary shall receive the lump sum calculated
under the MSBP if the deceased Participant is a Grandfathered MSBP Participant
and the Beneficiary elects to receive the benefit provided under the MSBP.
Otherwise, such lump sum shall equal the deceased Participant's Account under
the Plan. The lump sum distribution shall be paid within ninety (90) days
following the Participant's death.
SECTION 9.
TAX WITHHOLDING
Benefits hereunder shall be subject to applicable FICA withholding
laws. Benefit payments hereunder shall be subject to applicable federal, state
and 1ocal tax withholding laws.
SECTION 10.
ADMINISTRATION OF THE PLAN
10.01. Duties and Power. The Committee shall be the "named fiduciary"
for the Plan responsible for the general operation and administration of the
Plan and the proper execution of its provisions. It shall have full
discretionary authority to interpret the Plan and to determine the response to
all questions arising from its provisions. It shall maintain all necessary books
of accounts and records. It shall have the full discretionary power and
authority to establish, interpret, enforce, amend, and revoke, from time to
time, such rules and regulations for the administration of the Plan and the
conduct of its business as it deems appropriate, including the right to remedy
ambiguities, inconsistencies and omissions. Any action that the Committee is
required or authorized to take shall be final and binding upon each and every
person who is or may become a Plan Participant or Beneficiary. The Committee may
delegate its authority to administer the Plan.
10.02. Benefit Statements. The Committee, or its designee, will provide
each Participant with a quarterly statement setting forth the Participant's
Account balance.
10.03. Right to Accelerate. The Board in its sole discretion may
accelerate all vested benefits upon termination of the Plan, and pay such
benefits in a single lump sum. If the Internal
10
Revenue Service or the Committee determines that any amounts in Participants'
Accounts are currently taxable, the Committee may direct immediate payment of
all or some Plan benefits in a single lump sum or to take any other action it
deems appropriate. In addition, Participant's terminating employment with an
Account balance of less than $10,000 shall receive such benefits in a single
lump sum regardless of the Participant's distribution election.
SECTION 11.
AMENDMENT, SUSPENSION, AND TERMINATION
11.01. Right to Amend or Terminate. The Plan may be amended, modified
or terminated by the Committee at any time. Such amendment, modification or
termination may modify or eliminate any benefit hereunder except that such
amendment, modification or termination shall not affect the rights of
Participants or Beneficiaries to the vested portion of a Participant's Account
as of the date of such amendment or termination.
11.02. Right to Suspend. If the Committee determines that payments
under the Plan would have a material adverse affect on the Company's ability to
carry on its business, the Committee may suspend such payments temporarily for
such time as in its sole discretion it deems advisable, but in no event for a
period in excess of one year. The Company shall pay such suspended payments in a
lump sum immediately upon the expiration of the period of suspension.
11.03. Partial ERISA Exemption. The Plan is intended to provide
benefits for "a select group of management or highly compensated employees"
within the meaning of sections 201, 301 and 401 of ERISA, and therefore to be
exempt from sections 2, 3 and 4 of Title I of ERISA. Accordingly, the Plan shall
terminate and existing Account balances shall be paid in a single lump-sum and
no further benefits, vested or non-vested, shall be paid hereunder in the event
it is determined by a court of competent jurisdiction or by an opinion of
counsel that the Plan constitutes an employee pension benefit plan within the
meaning of section 3(2) of ERISA which is not so exempt.
SECTION 12.
MISCELLANEOUS
12.01. Unfunded Plan. The Plan shall be unfunded within the meaning of
sections 201(2), 301(a)(3) and 401(a)(1) of ERISA. All benefits payable under
the Plan shall be paid from the Company's general assets. The Company shall not
be required to set aside or hold in trust any funds for the benefit of a
Participant or Beneficiary, each of whom shall have the status of a general
unsecured creditor with respect to the Company's obligation to make benefit
payments pursuant to the Plan. Any assets of the Company available to pay Plan
benefits shall be subject to the claims of the Company's general creditors and
may be used by the Company in its sole discretion for any purpose. A Participant
shall be treated as an unsecured creditor of the Company for all benefits under
the Plan.
12.02. No Right to Continued Employment. Nothing in the Plan shall
create or be construed as a contract between the Company or an Affiliated
Company and employees for any matter including giving any person employed by the
Company or an Affiliated Company the right to be retained in the Company's or an
Affiliated Company's employ. The Company and each Affiliated Company expressly
reserve the right to dismiss any person at any time, with or without cause,
without liability
11
for the effect that such dismissal might have upon him as a Participant in the
Plan or for any other purpose.
12.03. Prohibition Against Alienation. Except as otherwise provided in
the Plan, no right or benefit under the Plan shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, or
charge, and any attempt to so anticipate, alienate, sell, transfer, assign,
pledge, encumber, or charge the same shall be void. No such right or benefit
shall be liable for or subject to the debts, contracts, liabilities,
engagements, or torts of the person entitled to such right or benefit.
12.04. Savings Clause. If any provision of this Plan is held by a court
of competent jurisdiction to be invalid or unenforceable, such invalidity or
unenforceability shall not affect any other provision and the remaining
provisions hereof shall continue to be construed and enforced as if the invalid
or unenforceable provision had not been included.
12.05. Payment of Benefit of Incompetent. In the event the Committee
finds that a Participant, former Participant or Beneficiary is unable to care
for his affairs because of his minority, illness, accident, or other reason, any
benefits payable hereunder may, unless other claim has been made therefor by a
duly appointed guardian, committee or other legal representative, be paid to a
spouse, child, parent, or other blood relative or dependent or to any person
found by the Committee to have incurred expenses for the support and maintenance
of such Participant, former Participant, or Beneficiary; and any such payments
so made shall be a complete discharge of all liability therefor.
12.06. Spouse's Interest. The interest in the benefits hereunder of a
Spouse who has predeceased the Participant shall automatically pass to the
Participant and shall not be transferable by such Spouse in any manner
including, but not limited to, such Spouse's will, nor shall such interest pass
under the laws of intestate succession.
12.07. Successors. In the event of any consolidation, merger,
acquisition or reorganization of the Company, the obligations of the Company and
Participating Affiliated Companies under this Plan shall continue and be binding
upon the Company, Participating Affiliated Companies and its successors.
12.08. Gender, Number and Heading. Whenever any words are used herein
in the masculine gender, they shall be construed as though they were also used
in the feminine gender in all cases where they would so apply. Whenever any
words used herein are in the singular form, they shall be construed as though
they were also used in the plural form in all cases where they would so apply.
Headings of sections and subsections as used herein are inserted solely for
convenience and reference and constitute no part of the Plan.
12.09. Legal Fees and Expenses. The Company shall pay all reasonable
legal fees and expenses that a Participant may incur as a result of the Company
contesting the validity, enforceability, or the Participant's interpretation of,
or determinations under this Plan, other than tax withholding under Section 9.
12.10. Choice of Law. This Plan shall be governed by and construed in
accordance with the laws of the State of Michigan, other than its choice-of-law
rules, to the extent not superseded by applicable federal statues or
regulations.
12
12.11. Affiliated Employees. Transfers of employment between Affiliated
Companies and the Company or other Affiliated Companies will be treated as
continuous and uninterrupted service under the Plan.
12.12. Plan Document. This Plan document provides the final and
exclusive statement of the terms of the Plan. Unless otherwise authorized by the
Committee or its delegate, no amendment or modification to this Plan shall be
effective until reduced to writing and adopted pursuant to Section 11.01. This
document legally governs the operation of the Plan, and any claim of right or
entitlement under the Plan shall be determined solely in accordance with its
provisions. To the extent that there are any inconsistencies between the terms
of any related materials and the terms of this document, the terms of this
document shall control and govern the operation of the Plan. No other evidence,
whether written or oral, shall be taken into account in determining the right of
an Eligible Employee, a Participant, or Beneficiary, as applicable, to any
benefit of any type provided under the Plan.
SECTION 13.
ARBITRATION
In the event of any dispute, claim, or controversy (hereinafter
referred to as a "Grievance") between a Participant who is eligible to elect to
receive the benefits provided under this Plan and the Company with respect to
the payment of benefits to such Participant under this Plan, the computation of
benefits under this Plan, or any of the terms and conditions of this Plan, such
Grievance shall be resolved by arbitration in accordance with this Section 13.
(a) Arbitration shall be the sole and exclusive remedy to
redress any Grievance.
(b) The arbitration decision shall be final and binding, and a
judgment on the arbitration award may be entered in any court of competent
jurisdiction and enforcement may be had according to its terms.
(c) The arbitration shall be conducted by the American
Arbitration Association in accordance with the Commercial Arbitration Rules of
the American Arbitration Association and reasonable expenses of the arbitrators
and the American Arbitration Association shall be borne by the Company.
(d) The place of the arbitration shall be the offices of the
American Arbitration Association in the Detroit, Michigan Metropolitan area.
(e) The arbitrator(s) shall not have the jurisdiction or
authority to change any of the provisions of this Plan by alteration of,
addition to, or subtraction from the terms thereof. The arbitrator(s)' sole
authority shall be to apply any terms and conditions of this Plan. Since
arbitration is the exclusive remedy with respect to any Grievance, no
Participant eligible to receive benefits provided under this Plan has the right
to resort to any federal court, state court, local court, or administrative
agency concerning breaches of any terms and provisions hereunder, and the
decision of the arbitrator(s) shall be a complete defense to any suit, action,
or proceeding instituted in any federal court, state court, local court, or
administrative agency by such employee or the Company with respect to any
Grievance which is arbitrable as herein set forth.
(f) The arbitration provisions shall, with respect to any
Grievance, survive the termination of this Plan.
13
SECTION 14.
CHANGE IN CONTROL PROVISIONS
14.01. General. In the event of a Change in Control, as defined in
Section 14.07, then, notwithstanding any other provision of the Plan, the
provisions of this Section 14 shall be applicable and shall supersede any
conflicting provisions of the Plan, including any change in control language in
the MSBP, SDRIP or KEDC.
14.02. Immediate Vesting. In the case of a Change in Control, each
Participant's Account shall immediately be 100% vested.
14.03. Transfer to Rabbi Trust. The Company shall establish a trust
(the "Rabbi Trust") that is intended to be an unfunded arrangement and not
affect the status of the Plan as an unfunded arrangement for purposes of Title I
of ERISA. The terms of the Rabbi Trust shall provide that, within seven (7) days
of a Change in Control, assets shall be transferred to the Rabbi Trust in (a) an
amount equal to each Participant's Account balance as of the date of the Change
in Control, plus (b) an amount deemed necessary to pay estimated Rabbi Trust
administrative expenses for the following five (5) years, as determined by the
Company's Accountants or the Company's Actuaries. Assets transferred in
accordance with the preceding sentence shall either be (i) in the form of shares
of the Deemed Investments and/or DTE Stock equal to the number of shares of each
such Deemed Investment and DTE Stock in which the Participant's Account is
deemed to be invested for bookkeeping purposes on the date of the Change in
Control or (ii) in the form of in cash, in which case an additional cash
transfer shall be made, prior to the initial investment of cash by the trustee
of the Rabbi Trustee in DTE Stock or any Deemed Investment, in an amount
sufficient to permit the trustee of the Rabbi Trust to invest in the number of
shares of each Deemed Investment and DTE Stock in which the Participant's
Account was deemed to be invested for bookkeeping purposes on the date of the
Change in Control (as adjusted for any subsequent share splits, consolidations,
etc.). The Company and/or an Affiliated Company shall make all transfers of
assets required by the Rabbi Trust in a timely manner and shall otherwise abide
by the terms of the Rabbi Trust.
14.04. Lump Sum Payments. In connection with a Change in Control or
consummation of a transaction constituting a Change in Control, the Chairman of
DTE Energy Company shall have the absolute discretion to direct that a lump sum
payment be made to a Participant up to the total value of such Participant's
Account if such payment will reduce the amount of any potential excise tax
imposed by Code section 4999.
14.05. Joint and Several Liability. Upon and at all times after a
Change in Control, the liability under the Plan of the Company and each
Affiliated Employer that has adopted the Plan shall be joint and several so that
the Company and each such Affiliated Employer shall each be liable for all
obligations under the Plan to each employee covered by the Plan, regardless of
the corporation by which such employee is employed.
14.06. Dispute Procedures. In the event that, upon or at any time
subsequent to a Change in Control, a disputed claim for benefits under the Plan
is brought by a Participant or beneficiary, the following additional procedures
shall be applicable:
(a) Any amount that is not in dispute shall be paid to the
Participant or beneficiary at the time or times provided herein.
14
(b) The Company shall advance to such claimant from time to
time such amounts as shall be required to reimburse the claimant for reasonable
legal fees, costs and expenses incurred by such claimant in seeking a judicial
resolution of his or her claim, including reasonable fees, costs and expenses
relating to arbitration.
14.07. Definition of Change in Control. A "Change in Control" means the
occurrence of any one of the following events:
(a) individuals who, on December 31, 2001, constitute the
Board (the "Incumbent Directors") cease for any reason to constitute at least a
majority of the Board, provided that any person becoming a director subsequent
to December 31, 2001, whose election or nomination for election was approved by
a vote of at least two-thirds of the Incumbent Directors then on the Board
(either by a specific vote or by approval of the proxy statement of the Company
in which such person is named as a nominee for director, without written
objection to such nomination) shall be an Incumbent Director; provided, however,
that no individual initially elected or nominated as a director of the Company
as a result of an actual or threatened election contest (as such terms are used
in Rule 14a-11 of Regulation 14A promulgated under the Securities Exchange Act
of 1934, as amended (the "Exchange Act")) with respect to directors or as a
result of any other actual or threatened solicitation of proxies [or consents]
by or on behalf of any person other than the Board shall be deemed to be an
Incumbent Director;
(b) any "person" (as such term is defined in Section 3(a)(9)
of the Exchange Act and as used in Sections 13(d)(3) and 14(d)(2) of the
Exchange Act) is or becomes a "beneficial owner" (as defined in Rule 13d-3 under
the Exchange Act), directly or indirectly, of securities of the Company
representing 20% or more of the combined voting power of the Company's then
outstanding securities eligible to vote for the election of the Board (the
"Company Voting Securities"); provided, however, that the event described in
this paragraph (b) shall not be deemed to be a Change in Control by virtue of
any of the following acquisitions: (A) by the Company or any Subsidiary, (B) by
any employee benefit plan (or related trust) sponsored or maintained by the
Company or any Subsidiary, (C) by any underwriter temporarily holding securities
pursuant to an offering of such securities, (D) pursuant to a Non-Qualifying
Transaction (as defined in paragraph (c)), or (E) a transaction (other than one
described in (c) below) in which Company Voting Securities are acquired from the
Company, if a majority of the Incumbent Directors approve a resolution providing
expressly that the acquisition pursuant to this clause (E) does not constitute a
Change in Control under this paragraph (b);
(c) the consummation of a merger, consolidation, statutory
share exchange or similar form of corporate transaction involving the Company or
any of its Subsidiaries (a "Business Combination") or sale or other disposition
of all or substantially all of the Company's assets to an entity that is not an
affiliate of the Company (a "Sale"), unless immediately following such Business
Combination or Sale: (A) more than 50% of the total voting power of (x) the
corporation resulting from such Business Combination (the "Surviving
Corporation"), or (y) if applicable, the ultimate parent corporation that
directly or indirectly has beneficial ownership of 100% of the voting securities
eligible to elect directors of the Surviving Corporation (the "Parent
Corporation"), is represented by Company Voting Securities that were outstanding
immediately prior to such Business Combination (or, if applicable, is
represented by shares into which such Company Voting Securities were converted
pursuant to such Business Combination), and such voting power among the holders
thereof is in substantially the same proportion as the voting power of such
Company Voting Securities among the holders thereof immediately prior to the
Business Combination, (B) no person (other than any employee benefit plan (or
related trust) sponsored or maintained by the Surviving Corporation or the
15
Parent Corporation), is or becomes the beneficial owner, directly or indirectly,
of 20% or more of the total voting power of the outstanding voting securities
eligible to elect directors of the Parent Corporation (or, if there is no Parent
Corporation, the Surviving Corporation) and (C) at least a majority of the
members of the board of directors of the Parent Corporation (or, if there is no
Parent Corporation, the Surviving Corporation) following the consummation of the
Business Combination were Incumbent Directors at the time of the Board's
approval of the execution of the initial agreement providing for such Business
Combination (any Business Combination which satisfies all of the criteria
specified in (A), (B) and (C) above shall be deemed to be a "Non-Qualifying
Transaction"); or
(d) the stockholders of the Company approve a plan of complete
liquidation or dissolution of the Company.
Notwithstanding the foregoing, a Change in Control of the Company shall
not be deemed to occur solely because any person acquires beneficial ownership
of more than 20% of the Company Voting Securities as a result of the acquisition
of Company Voting Securities by the Company which reduces the number of Company
Voting Securities outstanding; provided, that if after such acquisition by the
Company such person becomes the beneficial owner of additional Company Voting
Securities that increases the percentage of outstanding Company Voting
Securities beneficially owned by such person, a Change in Control of the Company
shall then occur.
16
IN WITNESS WHEREOF, DTE Energy Company has caused this Plan to be executed as of
this 1st day of January 2001.
DTE Energy Company
By:
---------------------------
Larry E. Steward
Vice President, Human Resources