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EXHIBIT 10.64
SECOND RESTATEMENT OF
THE RETIREMENT REPARATION PLAN
FOR CERTAIN EMPLOYES OF
THE DETROIT EDISON COMPANY
The Retirement Reparation Plan for Certain Employes of The Detroit Edison
Company (the "Plan"), established by The Detroit Edison Company (the "Company")
effective January 1, 1989, as amended and restated effective May 22, 1989, is
hereby amended and restated as of June 26, 1995 by this Second Restatement.
SECTION 1 - PURPOSE
The sole purpose of this Plan is to assure that all persons who become eligible
to and do receive benefits under the Employes' Retirement Plan of The Detroit
Edison Company (the "Retirement Plan") will receive the same aggregate dollar
amount of benefits (after taking into account any benefits such persons are
eligible to receive under the Benefit Equalization Plan for Certain Employes of
The Detroit Edison Company (the "BEP")) as they would have received under the
Retirement Plan, but for the limitations on contributions and benefits imposed
from time to time by the compensation limitation of Section 401(a)(17) of the
Internal Revenue Code, whether such limitations result solely from the
application of Section 401(a)(17) of the Internal Revenue Code or result from
the combination of the application of Section 401(a)(17) of the Internal
Revenue Code and the application of the limitations on contributions and
benefits imposed from time to time by Section 415 of the Internal Revenue Code.
This Plan is not intended to and shall not be construed so as to provide any
person receiving benefits under the Retirement Plan, the BEP, if applicable,
and this Plan, if applicable, with benefits in the aggregate which are either
larger or smaller than the benefit which would result from the calculation made
under the applicable provisions of the Retirement Plan, and the BEP, if
applicable, without giving effect to or recognition of the contribution and
benefit limitation provisions of Section 401(a) (17) of the Internal Revenue
Code, whether such limitations result solely from the application of Section
401(a)(17) of the Internal Revenue Code or result from the combination of the
application of Section 401(a)(17) of the Internal Revenue Code and the
application of the limitations on contributions and benefits under Section 415
of the Internal Revenue Code. The benefit provided under this Plan to any
person shall be separate from and in addition to any benefit provided under the
Retirement Plan, the BEP, if applicable, and any other plan or program
maintained by the Company.
SECTION 2 - ELIGIBILITY
Persons whose benefits under the Retirement Plan are limited by the provisions
set forth therein to conform to Section 401(a)(17) of the Internal Revenue Code
shall be
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eligible for the benefits provided under this Plan. In no event shall a person
who is not entitled to benefits under the Retirement Plan be eligible for any
benefits under this Plan.
SECTION 3 - AMOUNT OF BENEFITS
The benefits payable under this Plan shall equal the excess, if any, of:
(a) the aggregate benefits which would have been paid to such retired
employe, an employe's spouse or beneficiary under the Retirement Plan
and the BEP, if applicable, if the provisions of such plans were
administered and benefits paid without regard to either the
limitations on contributions and benefits imposed by the compensation
limitation of Section 401(a)(17) of the Internal Revenue Code, or the
special benefit limitations added to the Retirement Plan to conform it
to Section 415 of the Internal Revenue Code, over
(b) the aggregate benefits which are payable to such retired employe, an
employe's spouse or beneficiary under the Retirement Plan and the BEP,
if applicable.
SECTION 4 - PAYMENT OF BENEFITS
(a) Payment of benefits under this Plan shall be made coincident with the
payment of benefits under the Retirement Plan or as soon as
practicable thereafter.
(b) In the event an employe receives an assessment of income taxes from
the Internal Revenue Service which treats any amount payable under
this Plan as being includible in such employe's gross income prior to
the actual payment of such amount to such employe, the Company shall
pay an amount equal to such income taxes to the employe within 30 days
after written notice from such employe of such assessment. The amount
of income taxes paid to the employe hereunder shall be considered an
advance of and shall reduce the benefits ultimately paid to the
employe under this Plan.
(c) Each payment under this Plan shall be reduced by any federal, state,
or local taxes which the Company determines should be withheld from
such payment.
(d) Benefits under this Plan shall be payable solely from the general
assets of the Company. Each participant in this Plan shall have the
status of an unsecured creditor of the Company. This Plan constitutes
a promise by the Company to make benefit payments in the future. It
is intended that this Plan be unfunded for tax purposes and for
purposes of Title I of ERISA and that this Plan shall remain unfunded
during the entire period of its existence. The Company intends that
this Plan be maintained primarily for a select group of management or
highly compensated employes.
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SECTION 5 - RIGHTS OF EMPLOYES
Except to the extent provided in Section 7 herein below, no employe or an
employe's spouse or beneficiary shall at any time have any vested right to
receive the benefits provided by this Plan. The employe, employe's spouse or
beneficiary is merely a general creditor of the Company and the obligation of
the Company hereunder is purely contractual and shall not be funded or secured
in any way.
The right of an employe, employe's spouse or beneficiary to payment of any
benefit hereunder shall not be anticipated, alienated, sold, assigned,
transferred, pledged, encumbered, attached, or garnished by an employe, an
employe's spouse or beneficiary, or creditors of an employe and shall not be
subject to garnishment, execution, attachment, or similar process. Any
attempted anticipation, sale, assignment, transfer, pledge, levy, encumbrance,
attachment, garnishment or similar process shall be null and void and without
effect.
SECTION 6 - ADMINISTRATION; ARBITRATION
(a) This Plan shall be administered by the Organization and Compensation
Committee of the Board of Directors (the "Administrator") as an
unfunded plan which is not intended to meet the qualification
requirements of Section 401 of the Internal Revenue Code. The
Administrator's decisions in all matters involving the interpretation
and application of this Plan shall be conclusive.
(b) The Plan shall at all times be maintained by the Company and
administered by the Administrator as a plan wholly separate from the
Retirement Plan, the BEP and any other plan or program maintained by
the Company.
(c) Notwithstanding Section 6(a) hereof, in the event of any dispute,
claim, or controversy (hereinafter referred to as a "Grievance")
between an employe 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 employe 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 6(c).
(1) Arbitration shall be the sole and exclusive remedy to
redress any Grievance.
(2) 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.
(3) The arbitration shall be conducted by the American
Arbitration
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Association with the Commercial Arbitration Rules of
the American Arbitration Association and expenses of
the arbitrators and the American Arbitration
Association shall be borne by the Company. Neither
the Company nor such employe shall be entitled to
attorneys' fees, expert witness fees, or any other
expenses expended in the course of such arbitration
or the enforcement of any award rendered thereunder.
(4) The place of the arbitration shall be the offices of
the American Arbitration Association in the Detroit
Metropolitan area, Michigan.
(5) 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 employe
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
employe or the Company with respect to any Grievance
which is arbitrable as herein set forth.
(6) The arbitration provisions shall, with respect to any
Grievance, survive the termination of this Plan.
SECTION 7 - AMENDMENT AND DISCONTINUANCE
The Company expects to continue this Plan indefinitely, but reserves the right
to amend or discontinue it. The Vice President, Human Resources, or, should
the Vice President, Human Resources, become a Participant in this Plan, the
Manager, Human Resources Operations, shall review the Plan from time to time
and as part of such review is hereby directed and authorized to amend such Plan
to the extent necessary for ease of administration and/or to comply with
applicable federal and state laws. If the Plan should be amended or
discontinued, the Company shall be liable for any benefits that have accrued
under this Plan (determined on the basis of each employe 's presumed
termination of employment as of the date of such amendment or discontinuance)
as of the date of such action.
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