Exhibit 10.61
FIRST AMENDMENT TO THE
DTE ENERGY COMPANY EXECUTIVE DEFERRED COMPENSATION PLAN
(EFFECTIVE AS OF OCTOBER 1, 2003)
The First Amendment to the DTE Energy Company Executive Deferred
Compensation Plan is adopted pursuant to resolutions approved by the DTE Energy
Company Board of Directors on September 25, 2003.
1. Effective as of October 1, 2003, Section 2.07 "Cash Balance Plan"
shall be amended and restated to read as follows:
2.07. Cash Balance Plan. "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);
provided, however, that the MCN Traditional Option and the DTE
Traditional Option of the DTE Energy Company Retirement Plan shall be
included in the definition of "Pension Plan," and not in the
definition of "Cash Balance Plan".
2. Effective as of January 1, 2004, Section 2.08 "Cash Compensation"
shall be amended and restated to read as follows:
2.08. Cash Compensation. "Cash Compensation" means Annual Cash Bonus
or other cash payments (other than Performance Share Awards payable
in cash, which are defined in Section 2.28 "Performance Share Awards")
payable to a Participant.
3. Effective as of January 1, 2004, Section 2.14 "Contribution
Subaccount" shall be amended and restated to read as follows:
2.14. Contribution Subaccount. "Contribution Subaccount" means a
hypothetical bookkeeping record maintained by the Company to track
the various allocations to a Participant's account. For purposes of
this Plan, the balance in each Account shall be allocated among the
Annual Cash Bonus Subaccount, the Base Salary Subaccount (for Base
Salary deferred prior to January 1, 2004), the Prior Plans Subaccount,
and the Mandatory Deferral Subaccount (collectively, known as the
Contribution Subaccounts) as defined in Section 5 herein.
4. Effective as of October 1, 2003, Section 2.27 "Pension Plan" shall be
amended and restated to read as follows:
2.27. Pension Plan. "Pension Plan" means any defined benefit plan
maintained by the Company or an Affiliated Company, which is intended
to be qualified under Code section 401(a). "Pension Plan"
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includes the MCN Traditional Option and the DTE Traditional Option of
the DTE Energy Company Retirement Plan, but cash balance defined
benefit plans shall otherwise be included in the definition of "Cash
Balance Plan," and not in the definition of "Pension Plan."
5. Effective as of January 1, 2004, Section 4.02 "Deferral of Base
Salary" shall be deleted in its entirety.
6. Effective as of January 1, 2004, Section 4.04 shall be amended and
restated to read as follows:
4.04. Restoration of Qualified Plan Benefits. Amounts intended to
replace Qualified Plan benefits (but not earnings) under the Cash
Balance Plan, the Pension Plan, or the Savings Plan which are reduced
as a result of deferrals under Sections 4.01, 4.02, or 4.03 of this
Plan will be restored through a Qualified Plan Make-up Subaccount in
the DTE Energy Company Supplemental Retirement Plan.
7. Effective as of January 1, 2004, Subsections (a) through (c) of
Section 4.04 "Restoration of Qualified Plan Benefits" shall be deleted in their
entirety.
8. Effective October 1, 2003, Section 4.05 "Mandatory Deferral" shall be
amended and restated to read as follows:
4.05. Mandatory Deferral. The Company may credit to the Participant's
Mandatory Deferral Subaccount, on the date on which such compensation
would otherwise have been payable, amounts which would have been
nondeductible under Code section 162(m) on the date on which such
compensation would otherwise be payable. The Deferral Period for the
Mandatory Deferral Subaccount shall be through the date on which the
Participant ceases to be a "covered employee" as that term is defined
in Code section 162(m)(3). Any amounts in the Mandatory Deferral
Subaccount shall be paid in the form of a lump sum.
9. Effective as of January 1, 2004, Section 5.01 "Establishment of
Accounts" shall be amended and restated to read as follows:
5.01. Establishment of Accounts. The Committee shall establish a
hypothetical bookkeeping Account for each Participant. Each
Participant's Account shall be divided into one or more Contribution
Subaccounts:
(a) For Participants deferring Base Salary prior to January 1, 2004, a
"Base Salary Subaccount,"
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(b) For Participants deferring Annual Cash Bonus, an "Annual Cash
Bonus Subaccount,"
(c) For Participants who's Qualified Plan benefits are reduced
because of their participation in this Plan, a "Qualified Plan
Make-up Subaccount" in the DTE Energy Company Supplemental
Retirement Plan,
(d) For Participants deferring Performance Share Awards payable in
cash, a "Performance Share Subaccount,"
(e) For Participants whose compensation would otherwise be
nondeductible under Code section 162(m), a "Mandatory Deferral
Subaccount," and
(f) For Participants whose balance from a Prior Plan has been
transferred to this Plan, a "Prior Plan Subaccount."
In addition, each Contribution Subaccount shall be divided into one or
more Deferral Year Subaccounts, based on the Deferral Year of the
contributions allocated to such Contribution Subaccount. The Prior
Plan Subaccount shall be deemed to consist of one Deferral Year only.
10. Effective as of January 1, 2004, Subsection (a) of Section 5.02
"Contribution Subaccounts" shall be amended and restated to read as follows:
(a) Establishment of Contribution Subaccounts. A Participant's
Contribution Subaccount shall be denominated on a monetary basis.
The Committee shall cause each separate Contribution Subaccount
to be maintained in the name of each Participant with respect to
whom all or a portion of Base Salary (prior to January 1, 2004),
Annual Cash Bonus, or Performance Share Awards has been deferred,
whose Qualified Plan benefits have been reduced because of his
participation in this Plan, whose compensation has been
mandatorily deferred because of Code section 162(m), or whose
Prior Plan Balance has been transferred to this Plan.
11. Effective as of October 1, 2003, Subsection (b) of Section 6.01
"Distribution of Subaccounts" shall be amended and restated to read as follows:
(b) Timing of Distributions. A lump sum distribution shall be made as
of March 1 following the end of the Deferral Period or, if earlier,
March 1 following the end of the Plan Year in which the Participant's
employment terminated for any reason other than death. If a
Participant has elected to
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receive his distribution in annual installments, the first installment
shall be made as of March 1 following the end of the Deferral Period
or, if earlier, March 1 following the end of the Plan Year in which
the Participant's employment terminated for any reason other than
death. All subsequent annual installments shall be made on
approximately the same date each calendar year thereafter for the
remainder of the distribution period. If no Deferral Election is on
file with respect to the Deferral Year Subaccount or no distribution
option is indicated on the Deferral Election, the Participant's
Deferral Year Subaccount shall be distributed as of March 1 following
the end of the Plan Year in which the Participant's employment is
terminated for any reason other than death. Timing of a distribution
due to a Participant's death shall be governed by Section 7.03.
12. Effective as of January 1, 2004, Section 6.03 "Change in Distribution
Option" shall be amended and restated to read as follows:
6.03. Change in Distribution Option. A Participant may change the
distribution option previously selected for a particular Deferral
Year Subaccount at any time while actively employed by submitting a
revised Deferral Election applicable to such Deferral Year Subaccount
to the Committee. A change in time or manner of an in-service
distribution must be made by the December 31 prior to the March 1
payment date, and if the timing of such distribution is changed, the
new deferral period must be for at least two years.
13. Effective October 1, 2003, Section 6.04 "Hardship Withdrawals" shall
be amended and restated to read as follows:
6.04. Hardship Withdrawals. An active Participant may request, in
writing to the Vice President, Human Resources, a hardship withdrawal
of all or part of his remaining Account which will be paid within 30
days in a single lump sum. Such distribution shall be made only if the
Vice President, Human Resources determines that the Participant has an
unforeseen emergency that constitutes a severe financial hardship to
the Participant resulting from a sudden and unexpected illness or
accident of the Participant or of a dependent (as defined in Code
section 152(a)) of the Participant, loss of the Participant's
property due to casualty, or other similar extraordinary and
unforeseeable circumstances arising as a result of events beyond the
control of the Participant. Payment may not be made to the extent that
such hardship is or may be relieved through reimbursement or
compensation by insurance or otherwise by liquidation of the
Participant's assets, to the extent the liquidation of such assets
would not itself cause severe financial hardship or by cessation
of deferrals under the Plan. The distribution shall be limited to the
amount required to meet the financial hardship. In making these
determinations, the Vice President, Human Resources shall utilize the
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regulations proposed or adopted under Code section 457. Hardship
distributions shall be deducted from Contribution Subaccounts in the
following order (i) the Annual Cash Bonus Subaccount; and (ii) the
Base Salary Subaccount. Within each Contribution Subaccount, oldest
Deferral Year Subaccounts will be depleted first. If a Participant
elects a hardship withdrawal, any on-going deferral will cease, and
the Participant may not again be designated as an Eligible Employee
eligible to make additional deferrals under the Plan until the
enrollment period occurring at the end of the Plan Year following the
Plan Year in which the withdrawal was made.
14. Effective October 1, 2003, Section 6.05 "Unscheduled Withdrawals"
shall be amended and restated to read as follows:
6.05. Unscheduled Withdrawals. Active Participants shall be permitted
to make certain unscheduled withdrawals as described below:
(a) Election. Active Participants may request in writing to the Vice
President, Human Resources an unscheduled withdrawal of the entire
amount credited to the Participant's Account, including earnings,
which will be paid within 30 days in a single lump sum.
(b) Withdrawal Penalty. There will be a penalty deducted from the
Account prior to an Unscheduled Withdrawal equal to 10 percent of the
Participant's Account. If a Participant elects such a withdrawal, any
on-going deferral will cease, and the Participant may not again be
designated as an Eligible Employee eligible to make additional
deferrals under the Plan until the enrollment period occurring at the
end of the Plan Year following the Plan Year in which the withdrawal
was made.
This First Amendment to the DTE Energy Company Executive Deferred
Compensation Plan is executed as September 25, 2003.
DTE ENERGY COMPANY
By: \s\ Larry E. Steward
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Larry E. Steward
Vice President, Human Resources
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