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EXHIBIT 10-29
DTE ENERGY COMPANY
PLAN FOR DEFERRING THE PAYMENT OF DIRECTORS' FEES
(AS AMENDED AND RESTATED EFFECTIVE AS OF JANUARY 1, 1999)
The DTE Energy Company Plan for Deferring the Payment of Directors'
Fees (the "Plan") was established by DTE Energy Company (the "Company")
effective as of January 1, 1996. The Company now desires, effective as of
January 1, 1999, to amend and restate the Plan upon the terms and conditions
hereinafter set forth and to merge The Detroit Edison Company Plan for Deferring
the Payment of Directors' Fees (the "DECO Plan") heretofore maintained by the
Detroit Edison Company ("DECO") into the Plan as so amended and restated.
SECTION I - PURPOSE
The purpose of the Plan is to enable each Director (as defined below) to defer
all or a portion of his or her fees for future services as a member of the Board
of Directors or as a member of any committee thereof.
SECTION II - ELIGIBILITY
Any Director of the Company who is not a Company employee or an employee of any
Affiliate (a "Director") shall be eligible to participate in the Plan. For
purposes of the Plan, "Affiliate" shall mean any entity in which the Company
directly or indirectly beneficially owns more than 50% of the voting securities.
SECTION III - ELECTION, MODIFICATION, AND TERMINATION PROCEDURES
Any Director wishing to participate in the Plan must file with the Corporate
Secretary of the Company at 2000 Second Avenue, Detroit, MI 48226, a written
Notice of Election on the form attached as Exhibit "A" to defer payment of all
or a portion of his or her Director's fees payable in cash. Such an election to
participate in the Plan must be made prior to the beginning of the month for
which fees are payable. In addition, with respect to any Director who had a
deferred Director's fee account under the DECO Plan as of December 31, 1998,
effective beginning January 1, 1999, any Notice of Election filed by such
Director under the DECO Plan shall be deemed to have been made under and shall
be subject to the terms and conditions of this Plan as if it had been made
hereunder. An effective election with respect to Directors' fees that have been
deferred under the terms of this Plan or DECO Plan and fees that have already
been earned may not be modified or revoked. An effective election with regard to
fees that have not been deferred or earned may be modified by filing a new
Notice of Election or may be terminated by filing a Notice of Termination on the
form attached as Exhibit "B". A Director who shall have terminated an effective
election may thereafter file a new election covering a subsequent period.
SECTION IV - ESTABLISHMENT AND ADMINISTRATION OF DEFERRED DIRECTORS' FEE
ACCOUNT
The amount of any Director's fees deferred in accordance with an election,
including effective January 1, 1999, the deferred Director's fee account balance
under the DECO Plan transferred to
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this Plan by merger effective January 1, 1999, shall be credited to a deferred
Director's fee account maintained by the Company, which account shall be divided
into subaccounts to specifically identify the portion of the account subject to
adjustment under Section IV(b) ("Subaccount I") and the portion of the account
subject to adjustment under Section IV(c) ("Subaccount II"). Such account shall
remain a part of the general funds of the Company and DECO, and nothing
contained in this Plan shall be deemed to create a trust or fund of any kind or
create any fiduciary relationship.
As of the last day of each month for each Director participating in this Plan,
the deferred Director's fee account for such Director shall be adjusted as
follows:
(a) The account and applicable Subaccounts thereof shall first be
charged with any distributions made during the month and effective as
of January 1, 1999 the account and applicable Subaccounts thereof shall
be credited with any transfer to the Plan of the deferred Director's
fee account balance from the DECO Plan effective as of such date.
(b) The account balance in Subaccount I shall then be credited with
interest for that month. Such interest shall be computed by multiplying
the applicable portion of the account balance in Subaccount I after the
adjustment provided for in Subsection (a) but before the adjustments
provided for in Subsections (d) and (e) of this Section IV by a
fraction, the numerator of which is the 5-Year United States Treasury
Bond rate, as reported in The Wall Street Journal as of the last
business day of each month, and the denominator of which is 12.
(c) The account balance in Subaccount II shall then be adjusted to reflect
the number of hypothetical shares of Company Common Stock allocated to
Subaccount II as of such date. The number of hypothetical shares of
Company Common Stock allocated to Subaccount II as of any date shall be
equal to the number of shares of Company Common Stock that would be
allocated to Subaccount II as of such date if (i) the deferred
Director's fees to be credited to the Director's account for allocation
to Subaccount II were invested in the Company Common Stock at Fair
Market Value (as defined below) on the trading day that is coincident
with or next following the last day of the month on which such amount
is to be credited to the account, (ii) any balance transferred from
Subaccount I due to a change in election under Section V were invested
in the Company Common Stock at Fair Market Value on the trading day
that is coincident with or next following the effective date of such
change, (iii) cash dividends on the shares of Company Common Stock
treated as allocated to Subaccount II were automatically reinvested in
the Company Common Stock at Fair Market Value on the trading day that
is coincident with or next following the applicable dividend payment
date, and (v) any transfers to Subaccount I due to a change in election
under Section V or any cash distributions from Subaccount II Account
were made at Fair Market Value on the trading day that is coincident
with or next preceding the effective date of such change of election or
distribution of the number of hypothetical shares of Company Common
Stock needed to make such transfer or distribution, which hypothetical
shares shall be subtracted from the number of shares treated as
allocated to Subaccount II of the Participant's Account as of the
effective date of the transfer
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or distribution. In the event of any stock dividend or split,
recapitalization, reclassification, increase or decrease in the number
of outstanding shares, merger, consolidation or exchanges in shares or
other similar changes in the Company's Common Stock, appropriate
adjustments shall be made in the hypothetical shares of Company Common
Stock allocated to each Director's Subaccount II to reflect any such
change. For purposes of the Plan, "Fair Market Value" means the average
of the high and low sales prices of Company Common Stock as listed in
the Wall Street Journal for the New York Stock Exchange Composite tape
on a specified date.
(d) Next, the account shall be credited with the amount, if any, of
Director's fees deferred during that month, which amount shall be
allocated to Subaccount I and Subaccount II in accordance with the
Director's election or deemed election under Section V as in effect as
of such date.
(e) Finally, the amount of any transfer to or from Subaccount I or
Subaccount II of the account, pursuant to a change in election or
deemed election under Section V, made as of such date shall be added to
or subtracted from, as the case may be, the applicable Subaccounts.
A separate record of deferred Director's fees and adjustments thereto shall be
maintained by the Company for each participant in this Plan.
SECTION V - ELECTION OF ACCOUNT EARNINGS ADJUSTMENTS
At the time a Director elects to participate in the Plan or as of January 1,
1999, if later, the Director shall elect by filing a notice with the Corporate
Secretary of the Company to have Director fees thereafter deferred under the
terms of the Plan allocated, in specified multiples of 10%, to Subaccount I or
Subaccount II of the deferred Director's fee account. If a Director who is
participating in the Plan or the DECO Plan as of December 31, 1998 fails to make
an election hereunder as of January 1, 1999, he or she will be deemed to have
elected to have Director's fees deferred on or after January 1, 1999 allocated
to Subaccount I. In addition, if a Director is participating in the Plan or the
DECO Plan as of December 31, 1998, the Director will be deemed to have elected
to have his or her deferred Director's fee account balances as of December 31,
1998 allocated to Subaccount I effective as of January 1, 1999 unless the
Director changes such deemed election as hereinafter provided in this Section V.
A Director's election or deemed election under this Section V shall remain in
effect until changed as hereinafter provided in this Section V.
A Director may change his or her election or deemed election under this Section
V effective as of the last day of any month beginning on or after January 1,
1999 (or effective as of January 1, 1999 if the Director has a deferred
Director's fee account balance under the Plan or the DECO Plan as of December
31, 1998), by filing with the Corporate Secretary of the Company written notice
of such change at least 14 days (or by such other date as the Corporate
Secretary of the Company shall prescribe) prior to the effective date of such
change. Any change shall direct that either or both of (a) that the balance
credited to Subaccount I or Subaccount II of the deferred Director's fee account
as of such date (determined before the adjustment in Subsection (e) of Article
IV) be transferred, in specified multiples of 10%, to the other Subaccount or
(b) subsequent Director's
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fees deferred under the terms of the Plan be allocated, in specified multiples
of 10%, to Subaccount I or Subaccount II. Such change shall be effective as of
the date elected and shall remain in effect until further changed as provided
herein.
Any election or change in election under this Section V shall be made on the
forms attached as Exhibit "D" and Exhibit "E", respectively.
SECTION VI - PAYMENT OF DEFERRED DIRECTORS' FEES
Deferred fees shall be paid to a Director or, in the event of death, to his or
her designated beneficiary in accordance with the Notice of Election and
Beneficiary Designation forms that have been filed with the Corporate Secretary
of the Company. Payment shall be made in cash, and the amount of any payment
from Subaccount II of a deferred Director's fee account shall be made at Fair
Market Value on the trading day that is coincident with or next preceding the
effective date of payment. If a Director elects to receive payment of his or her
deferred fees in installments rather than in a lump sum, the payment period
shall not exceed ten years following the payment commencement date. The amount
of any installment payment shall be determined by multiplying the Director's
unpaid account balance on the date of such installment by a fraction, the
numerator of which is one and the denominator of which is the number of
remaining unpaid installments. Such balance shall be appropriately reduced to
reflect the installment payments made hereunder which shall be made prorata from
Subaccounts I and II.
SECTION VII - WHEN PAYMENT OF DEFERRED DIRECTORS' FEES COMMENCES
The payment in a lump sum or installments of amounts deferred pursuant to an
election under this Plan shall commence on January 15 of the first year to which
payment has been deferred and shall be paid in accordance with the terms of such
election. If a Director shall die prior to the first year to which payment has
been deferred, such payment shall commence on January 15 of the calendar year
immediately following the year of death and shall be paid in the manner
specified in such election.
In the event a participating Director receives an assessment of income taxes
from the Internal Revenue Service which treats any amount payable under this
Plan as being includible in such Director's gross income prior to the actual
payment of such amount to such Director, the Company shall pay an amount equal
to such income taxes to such Director within 30 days after written notice from
such Director of such assessment, and such Director's fee account shall be
reduced prorata from Subaccounts I and II by an amount equal to such income
taxes.
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.
Benefits under this Plan shall be payable solely from the general assets of the
Company and, with respect to amounts attributable to DECO, of DECO, as the case
may be, provided, however, that no provision in this Plan shall preclude the
Company or DECO from segregating assets which are intended to be a source for
payment of benefits under this Plan. Each participant in this Plan shall have
the status of a general unsecured creditor of the Company and of DECO. This Plan
constitutes a promise by the Company and DECO to make benefit payments in the
future. It is
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intended that this Plan be unfunded for tax purposes and that this Plan shall
remain unfunded for the entire period of its existence.
Notwithstanding the foregoing or anything to the contrary in the Plan, the
distribution of all or any portion of a deferred Director's fee account will be
delayed for a period not to exceed seven months or may be subject to prior
approval by the Board to the extent that the Corporate Governance Committee of
the Board of Directors of the Company determines that such delay or approval is
necessary or desirable to ensure that any transaction under the Plan will
qualify for an exemption from the liability provisions imposed on the Director
under Section 16(b) of the Securities Exchange Act of 1934, as amended, or any
rules and regulations issued thereunder. In the event of any such delay, the
undistributed portion of the deferred Director's fee account shall continue to
be subject to adjustment as provided in Section IV until distribution is made.
SECTION VIII - DESIGNATION OF BENEFICIARY
Each Director, on becoming a participant, shall file with the Corporate
Secretary of the Company a beneficiary designation on the form attached as
Exhibit "C" designating one or more beneficiaries to whom payments otherwise due
the participant shall be made in the event of his or her death while serving as
a Director or after leaving the Board. A beneficiary designation will be
effective only if the signed beneficiary designation form is filed with the
Corporate Secretary of the Company when the Director is alive, and will cancel
all beneficiary designations signed and filed previously under this Plan. If the
primary beneficiary shall survive the Director but dies before receiving all the
amounts due hereunder, the deferred amounts remaining unpaid at the time of
death shall be paid in one lump sum to the legal representative of the primary
beneficiary's estate. If the primary beneficiary shall predecease the Director,
amounts remaining unpaid at the time of the Director's death shall be paid in
the order specified by the Director to the contingent beneficiary(s) surviving
the Director. If the contingent beneficiary(s) dies before receiving all the
amounts due hereunder, the unpaid amount shall be paid in one lump sum to the
legal representative of such contingent beneficiary(s) estate. If the Director
shall fail to designate a beneficiary(s) as provided in this Section, or if all
designated beneficiaries shall predecease the Director, the deferred amounts
remaining unpaid at the time of such Director's death shall be paid in one lump
sum to the legal representative of the Director's estate.
SECTION IX - NON-ALIENABILITY AND NON-TRANSFERABILITY
No Director, beneficiary designated by the Director, or creditors of the
Director shall have any right to, directly or indirectly, anticipate, alienate,
sell, transfer, assign, pledge, encumber, attach, or garnish any amount that is
or may be payable hereunder.
SECTION X - ADMINISTRATION OF PLAN; ARBITRATION
(a) Full power and authority to construe, interpret, and administer the
Plan shall be vested in the Corporate Governance Committee of the Board
of Directors of the Company. Decisions of the Corporate Governance
Committee shall be final, conclusive, and binding upon all parties.
(b) Notwithstanding Section X(a) hereof, in the event of any dispute,
claim, or controversy (hereinafter referred to as a "Grievance")
between a Director who is eligible to elect to
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receive the benefits provided under this Plan and the Company with
respect to the payment of benefits to such Director 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 (b).
(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 Director 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.
(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 Director 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 Director 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.
(c) No Director shall be deemed for any purpose to be or to have the rights
and privileges of the owner of Company Common Stock with respect to any
hypothetical shares treated as allocated to his or her deferred
Director's fee account.
SECTION XI - AMENDMENT OR TERMINATION OF PLAN
The Board of Directors of the Company may amend or terminate this Plan at any
time. Any amendment or termination of this Plan shall not affect the rights of
participants or beneficiaries to the amounts in the deferred Directors' fee
accounts at the time of such amendment or termination.
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SECTION XII - APPLICABLE LAW
The provisions of this Plan shall be interpreted and construed in accordance
with the laws of the state of Michigan.
SECTION XIII - SUCCESSORS
The Company shall require any successor (whether direct or indirect, by
purchase, merger, consolidation, reorganization or otherwise) to all or
substantially all of the business and/or assets of the Company expressly to
assume and to agree to perform this Plan in the same manner and to the same
extent the Company would be required to perform if no such succession had taken
place. This Plan shall be binding upon and inure to the benefit of the Company
and any successor of or to the Company, including without limitation any persons
acquiring directly or indirectly all or substantially all of the business and/or
assets of the Company whether by sale, merger, consolidation, reorganization or
otherwise (and such successor shall thereafter be deemed the "Company" for the
purposes of this Plan), and the heirs, executors and administrators of each
Director.
IN WITNESS WHEREOF, DTE Energy Company, pursuant to resolutions of its Board of
Directors, has caused this instrument to be executed in its name and by its
Chairman of the Board as of the 2nd day of December, 1998.
DTE ENERGY COMPANY
By:
------------------------
Anthony F. Earley, Jr.
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EXHIBIT "A"
NOTICE OF ELECTION TO DEFER THE
PAYMENT OF DIRECTORS' FEES
Corporate Secretary
DTE Energy Company
2000 2nd Avenue
Detroit, MI 48226
DTE ENERGY COMPANY PLAN FORDEFERRING THE PAYMENT OF DIRECTORS' FEES
Pursuant to provisions of the above-referenced Plan, I hereby elect to have fees
payable in cash to me for services on the DTE Energy Company Board of Directors
and on any committee of such Board deferred in the manner specified below. It is
understood and agreed that this election shall become effective on the first day
of the month following receipt of this Notice of Election by the Secretary of
the Company. I understand that this election shall be irrevocable with respect
to fees that have been deferred and fees that have been earned for the month in
which a Notice of Termination shall be filed. This election shall continue in
effect for subsequent terms of office unless I shall modify or revoke it.
Payment of deferred fees shall commence on January 15 of the Year of Deferred
Payment selected.
YEAR TO WHICH PAYMENT IS DEFERRED:
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PERCENTAGE OF FEES DEFERRED:
----%
METHOD OF PAYMENt: (Select one)
Lump Sum , or
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Installments (Number of Years, not over 10)
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FREQUENCY OF INSTALLMENTS: (Select one)
Annually
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Quarterly
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Signature: Date:
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EXHIBIT "B"
NOTICE OF TERMINATION
Corporate Secretary
DTE Energy Company
2000 2nd Avenue
Detroit, MI 48226
DTE ENERGY COMPANY PLAN FOR DEFERRiNG THE PAYMENT OF DIRECTORS' FEES
Pursuant to provisions of the above-referenced Plan, I hereby terminate my
participation in the Plan effective as of the first day of the month following
receipt of this Notice of Termination by the Secretary of the Company.
Signature: Date:
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EXHIBIT "C"
BENEFICIARY DESIGNATION
Corporate Secretary
DTE Energy Company
2000 2nd Avenue
Detroit, MI 48226
DTE ENERGY COMPANY PLAN FOR DEFERRiNG THE PAYMENT OF DIRECTORS' FEES
Any amounts held in my account under the above-referenced Plan which remain
unpaid at my death shall be paid to the following primary beneficiary:
Name: Address:
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If the above-named primary beneficiary shall predecease me, I designate the
following persons as contingent beneficiaries, in the order shown, to receive
any such unpaid amounts:
1. Name: Address:
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2. Name: Address:
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3. Name: Address:
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This supersedes any previous beneficiary designation made by me with respect to
my deferred Director's fee account balance under the Plan. I reserve the right
to change the beneficiary in accordance with the terms of the Plan.
Signature: Date:
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Witnesses
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EXHIBIT "D"
NOTICE OF ELECTION OF ACCOUNT EARNINGS ADJUSTMENTS
Corporate Secretary
DTE Energy Company
2000 2nd Avenue
Detroit, MI 48226
DTE ENERGY COMPANY PLAN FOR DEFERRiNG THE PAYMENT OF DIRECTORS' FEES
Pursuant to provisions of the above-referenced Plan, I hereby elect to have my
Director fees deferred under the Plan commencing on the later of January 1, 1999
or the date I begin to participate in the Plan allocated to the following
Subaccount(s) for adjustment in accordance with the terms of the Plan (indicate
from 0% to 100% - in 10% increments - in front of each item; total must equal
100%):
Subaccount I. Adjustment based on the 5-Year
- ---------------------- United States Treasury Bond rate
Subaccount II. Adjustment made by making a
- ---------------------- hypothetical investment in
accordance with the Plan in DTE
Energy Company Common Stock with
the assumption of automatic
dividend reinvestment.
I understand that this election of the form of account earnings adjustment will
remain in effect until I elect to change my election effective as of the last
day of any month by filing with the Corporate Secretary of the Company a change
of election form at least 14 days (or by such other date as the Corporate
Secretary of the Company shall prescribe) prior to the effective date of the
change.
Signature: Date:
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EXHIBIT "E"
NOTICE OF ELECTION OF CHANGE IN ACCOUNT EARNINGS ADJUSTMENTS
Corporate Secretary
DTE Energy Company
2000 2nd Avenue
Detroit, MI 48226
DTE ENERGY COMPANY PLAN FOR DEFERRiNG THE PAYMENT OF DIRECTORS' FEES
Pursuant to provisions of the above-referenced Plan, I hereby make the following
election(s) with respect to the manner in which my deferred Director's fee
account under the Plan is adjusted (complete Section I or Section II, or both,
as desired):
I. (Complete this Section I only if you want to transfer all or part of
your existing deferred Director's fee account balance from one
Subaccount for adjustment under the other Subaccount.* If you desire to
make such a transfer, check the applicable item below and insert desired
percentage from 10% to 100% - in 10% increments.)
I elect to transfer % of my existing
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account balance in Subaccount I (under which
adjustment is based on the 5-Year United
States Treasury Bond rate) to Subaccount II
(under which adjustment is made by making a
hypothetical investment in accordance with
the Plan in DTE Energy Company Common Stock
with the assumption of automatic dividend
reinvestment).
- or -
I elect to transfer % of my existing
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account balance in Subaccount II (under
which adjustment is made by making a
hypothetical investment in accordance with
the Plan in DTE Energy Company Common Stock
with the assumption of automatic dividend
reinvestment) to Subaccount I (under which
adjustment is based on the 5-Year United
States Treasury Bond rate).
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II. (Complete this Section II only if you want to change your Subaccount
allocation election with respect to future Director's fees deferred
under the Plan. If you desire to make such a change, indicate from 0% to
100% - in 10% increments - in front of each item; total equal 100%):
Subaccount I. Adjustment based on the
---------------- 5-Year United States Treasury Bond rate
Subaccount II. Adjustment made by making a
---------------- hypothetical investment in accordance with
the Plan in DTE Energy Company Common Stock
with the assumption of automatic dividend
reinvestment.
I understand that the change(s) elected on this form will become effective as of
the last day of the month (or January 1, 1999 if the change is to be effective
under the Plan as of that date) occurring after the date this form is filed with
the Corporate Secretary of the Company, provided that it is filed at least 14
days (or by such other date as the Corporate Secretary of the Company shall
prescribe) prior to the effective date of the change.
Signature: Date:
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*.* Please note that a transfer is a discretionary transaction under Rule
16-b of the Securities Exchange Act of 1934, as amended, and
accordingly an election to transfer all or any portion of your account
balance would be "exempt" from the short-swing trading liability
provisions of Rule 16-b only if you have not made an "opposite way"
election under the Plan or any other plan of the Company or its
affiliates within the prior six months. Please contact the Company's
Corporate Secretary if you have any questions.
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