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EXHIBIT 10.65
SECOND RESTATEMENT OF
THE BENEFIT EQUALIZATION PLAN
FOR CERTAIN EMPLOYES OF
THE DETROIT EDISON COMPANY
The Benefit Equalization Plan for Certain Employes of The Detroit Edison
Company (the "Plan"), established by The Detroit Edison Company (the "Company")
effective March 1, 1978, 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 dollar amount of
benefits as they would have received but for the limitations on contributions
and benefits imposed from time to time solely 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 and, where
applicable, this Plan 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 without giving effect to or
recognition of solely the benefit limitation provisions of Section 415 of the
Internal Revenue Code. The benefit under this Plan provided to any person
shall be separate from and in addition to any benefit provided under the
Retirement Plan or 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 415 of the Internal Revenue Code shall
be eligible for the benefits provided by 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 hereunder shall equal the excess, if any, of:
(a) the benefits which would have been paid to a retired employe, such
employe's spouse or beneficiary under the Retirement Plan if the
provisions of such plan
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were administered and benefits paid without regard solely to the
special benefit limitations added to such plan to conform it to
Section 415 of the Internal Revenue Code, over
(b) the benefits which would be otherwise payable to such retired employe,
such employe's spouse or beneficiary under the Retirement Plan taking
into account solely the special benefit limitations added to such plan
to conform it to Section 415 of the Internal Revenue Code.
SECTION 4 - PAYMENT OF BENEFITS; AMENDMENTS
(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 such employe within thirty
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 a general 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 that this Plan shall remain unfunded during the entire period of
its existence. The Company intends to maintain this Plan similarly
for a select group of management or highly compensated employes.
Payments under the Plan as they become due shall be paid by the
Company from its general assets.
The Company reserves the right to amend, modify, or discontinue this
Plan at any time; provided, however, that no such amendment,
modification, or termination shall affect the rights of participants
or beneficiaries who are receiving or are immediately eligible to
receive benefits from the Plan at the time of such amendment,
modification, or termination.
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SECTION 5 - RIGHTS OF EMPLOYES
Except as to the extent provided in Section 7 herein, 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 rights of any participant to
receive benefits under this Plan are not subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment or
garnishment by such participant, the creditors of such participant, such
participant's spouse or such participant's beneficiary.
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 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 (the "Grievance") between an employe whose
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 and 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
Association in accordance 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
other expenses expended in the course of such arbitration or the
enforcement of any award rendered thereunder.
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(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 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 breeches 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 provision 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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