EX-10.76






Exhibit 10-76




DTE ENERGY COMPANY




SUPPLEMENTAL RETIREMENT PLAN




Amended and Restated Effective January 1, 2005





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	Section	 	Page
	ARTICLE 1 - Title
	 	 	1	 
	 
	 	 	 	 
	ARTICLE 2 - Definitions
	 	 	1	 
	Section 2.1 Plan Interest Rate
	 	 	1	 
	Section 2.2 Post-2004 Benefit
	 	 	1	 
	Section 2.3 Pre-2005 Benefit
	 	 	1	 
	 
	 	 	 	 
	ARTICLE 3 - Purpose
	 	 	2	 
	 
	 	 	 	 
	ARTICLE 4 - Effective Date
	 	 	2	 
	 
	 	 	 	 
	ARTICLE 5 - Eligibility
	 	 	2	 
	Section 5.1. Participants
	 	 	2	 
	Section 5.2. Determination of Eligibility
	 	 	3	 
	 
	 	 	 	 
	ARTICLE 6 - Employers’ Obligation
	 	 	3	 
	Section 6.1. Qualified Plan Benefit
	 	 	3	 
	Section 6.2. Executive Deferred Compensation Plan Benefit
	 	 	3	 
	Section 6.3. Prior Plan Payments
	 	 	4	 
	 
	 	 	 	 
	ARTICLE 7 - Payment of Benefits
	 	 	4	 
	Section 7.1. Form and Timing of Payment
	 	 	4	 
	Section 7.2. Increase in Section 415 Limit
	 	 	7	 
	Section 7.3. Recomputation of Plan Benefits Upon Reemployment
	 	 	7	 
	Section 7.4. Change in Payment Option
	 	 	7	 
	Section 7.5. Payments Subject to Golden Parachute Provisions
	 	 	8	 
	Section 7.6. Transfer to an Affiliated Company
	 	 	8	 
	Section 7.7. Unscheduled Withdrawals
	 	 	8	 
	 
	 	 	 	 
	ARTICLE 8 - Beneficiary in the Event of Death
	 	 	9	 
	Section 8.1. Death After Commencement of Benefits
	 	 	9	 
	Section 8.2. Death Prior to Commencement of Benefits
	 	 	9	 
	Section 8.3. Beneficiary Designation
	 	 	9	 
	 
	 	 	 	 
	ARTICLE 9 - Unfunded Plan
	 	 	9	 
	 
	 	 	 	 
	ARTICLE 10 - Arbitration
	 	 	10	 
	 
	 	 	 	 
	ARTICLE 11 - Amendment and Termination
	 	 	11	 
	 
	 	 	 	 
	ARTICLE 12 - Miscellaneous
	 	 	11	 
	Section 12.1. Benefits Non-Assignable
	 	 	11	 
	Section 12.2. No Employment Rights
	 	 	11	 
	Section 12.3. Law Applicable
	 	 	11	 






i 









 






	 	 	 	 	 
	Section	 	Page
	Section 12.4. Legal Fees and Expenses
	 	 	11	 
	Section 12.5. Successors
	 	 	11	 
	Section 12.6. Savings Clause
	 	 	11	 
	Section 12.7. Gender, Number and Heading
	 	 	12	 
	 
	 	 	 	 
	ARTICLE 13 - Change in Control Provisions
	 	 	12	 
	Section 13.1. General
	 	 	12	 
	Section 13.2. Transfer to Rabbi Trust
	 	 	12	 
	Section 13.3. Joint and Several Liability
	 	 	12	 
	Section 13.4. Dispute Procedures
	 	 	12	 
	Section 13.5. Definition of Change in Control
	 	 	13	 







ii 









 








DTE ENERGY COMPANY

SUPPLEMENTAL RETIREMENT PLAN

Amended and Restated Effective January 1, 2005




     WHEREAS, Detroit Edison Company (“Edison”) previously adopted the Detroit Edison Retirement
Reparation Plan and the Detroit Edison Benefit Equalization Plan, and MCN Energy Group Inc. (“MCN”)
previously adopted the MCN Energy Group Supplemental Retirement Plan and the MCN Energy Group
Excess Benefit Plan, which were adopted by DTE Enterprises, Inc. as of June 1, 2001 (the effective
date of the merger), and DTE Energy Company (the “Company”) desires to replace these four plans
(collectively, the “Prior Plans”).



     WHEREAS, effective December 31, 2001, the Prior Plans were terminated and replaced with this
plan as of January 1, 2002.



     NOW, THEREFORE, effective January 1, 2005, the Plan is being amended and restated to comply
with the requirements of Code section 409A solely with respect to benefits accrued and vested after
December 31, 2004. The provisions of the Plan in effect as of December 31, 2004 continue to apply
to benefits accrued and vested before January 1, 2005.



ARTICLE 1

Title




     The title of this plan shall be the “DTE Energy Company Supplemental Retirement Plan” and
shall be referred to in this document as the “Plan”.



ARTICLE 2

Definitions




     The words and phrases used in the Plan shall have the same meanings as provided under the DTE
Energy Retirement Plan (the “Qualified Plan”), unless otherwise defined in the Plan or the context
clearly requires otherwise.



     Section 2.1 Plan Interest Rate. “Plan Interest Rate” means the interest rate for
computing Interest Credits under the DTE Cash Balance Plan portion of the Qualified Plan.



     Section 2.2 Post-2004 Benefit. “Post-2004 Benefit” means the portion of a
Participant’s Plan benefit in excess of the Participant’s Pre-2005 Benefit.



     Section 2.3 Pre-2005 Benefit. “Pre-2005 Benefit” means the portion of a Participant’s
Plan benefit under Section 6.1 accrued and vested as of December 31, 2004, computed as if the
Participant terminated employment as of December 31, 2004, plus: (a) the portion of the
Participant’s Make-Up Account under Section 6.2(a) determined as if the Participant terminated
employment on December 31, 2004; or (b) the balance of the Participant’s Make-Up Account under
Section 6.2(b) determined as of December 31, 2004, whichever is applicable.



 









 





ARTICLE 3

Purpose




     The principal purpose of the Plan is to provide for the payment of certain benefits that would
not otherwise be payable under the Qualified Plan. Such benefits shall be payable to a “select
group of management or highly compensated employees” of the Company and any other corporation which
is a Participating Employer under the Qualified Plan (a “Participant”) and also elects to
participate in this Plan.



     It is intended that this Plan 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 the provisions of Parts 2, 3 and 4 of Title I of ERISA.



ARTICLE 4

Effective Date




     The original effective date of the Plan for the Company was January 1, 2002 and for any
Participating Employer was or is the date established by resolution of the Board of Directors of
the particular Participating Employer at the time of adoption of the Plan. The effective date of
this amendment and restatement of the Plan is January 1, 2005, unless a different effective date is
specified for a particular Plan provision.



     The Plan is being amended and restated effective January 1, 2005 to comply with the
requirements of Code Section 409A solely with respect to benefits accrued and vested after December
31, 2004. It is intended that all Plan benefits accrued and vested as of December 31, 2004 are not
subject to Code Section 409A. Only Plan benefits accrued and vested after January 1, 2005 are
subject to Code Section 409A. Any inconsistency or ambiguity in this amended and restated Plan
document is to be construed consistent with this Article 4.



     As permitted by the Treasury Regulations promulgated under Code Section 409A and guidance
issued by the Internal Revenue Service, the Plan has been administered in compliance with
applicable guidance under Code Section 409A in effect after December 31, 2004 before the adoption
of this amended and restated Plan document.



ARTICLE 5

Eligibility




     Section 5.1. Participants.



     (a) In General. Except as noted in Section 5.1(b), each employee of a Participating
Employer who is included within the term “select group of management or highly compensated



2









 







employees” within the meaning of Title I of ERISA and whose benefits have been limited as described
in Section 6.1 or 6.2, shall be eligible for benefits under the Plan.



     (b) 415 Limits. A Participant of a Participating Employer whose benefits under the
Qualified Plan are limited because of the limitation on benefits and contributions under Section
415 of the Code shall be eligible for the benefits provided by this Plan.



     (c) Qualified Plan Eligibility. Notwithstanding the foregoing, no employee shall be
eligible for benefits provided by this Plan until such employee has satisfied the eligibility
requirements of the Qualified Plan.



     Section 5.2. Determination of Eligibility. The Vice President, Human Resources shall
designate employees as eligible for participation under Section 5.1(a). The Vice President, Human
Resources may revoke such designation prior to any Plan Year with respect to the employee’s
eligibility for benefits for such Plan Year, provided, however, that no such revocation shall
adversely affect any amounts previously credited to such employee under the Plan.



ARTICLE 6

Employers’ Obligation




     Section 6.1. Qualified Plan Benefit. The Participating Employers shall pay under this
Plan any amount that any eligible employee would have been entitled to receive under the Qualified
Plan but for the limitation on compensation under Section 401(a)(17) of the Code, the limitation on
benefits and contributions under Section 415 of the Code, and any other provision of the Code or
other law that the Committee hereafter designates. Also, the Participating Employer shall pay
under this Plan any amount that any eligible employee would have been entitled to receive under the
Qualified Plan but for the exclusion of deferrals under the DTE Energy Company Supplemental Savings
Plan and the DTE Energy Company Executive Deferred Compensation Plan from the definition of
compensation under the option of the Qualified Plan applicable to such Participant.



     Section 6.2. Executive Deferred Compensation Plan Benefit. The Participating
Employers shall credit hypothetical bookkeeping accounts (“Make-Up Account”) for each Participant
with amounts intended to replace benefits (but not earnings) under any plan maintained by a
Participating Employer which is intended to be qualified under Code section 401(a) which are
reduced as a result of any deferrals under Sections 4.01, 4.02, or 4.03 of the DTE Energy Company
Executive Deferred Compensation Plan (“EDCP”):



     (a) Traditional Pension Plan Make-Up. The Participating Employer shall credit to the
Participant’s Make-Up Account, an amount equal to the difference between (i) the present value,
determined under each applicable defined benefit plan maintained by a Participating Employer which
is intended to be qualified under Code section 401(a), including the MCN Traditional Option and the
DTE Traditional Option of the Qualified Plan (“Pension Plan”), of the benefit that the Participant
would have been entitled to receive under each such Pension Plan but for his election to defer any
amount under the EDCP, and (ii) the present value, determined under each such Pension Plan, of the
benefit that the Participant is entitled to receive under such Pension Plan. Such



3









 







contribution shall be determined and credited as of the Participant’s date of termination of
employment.



     (b) Cash Balance Plan Make-Up. The Participating Employer shall credit to the
Participant’s Make-Up Account an amount equal to the additional increment that would have been
added to the Participant’s account under a cash balance defined benefit plan maintained by any
Participating Employer which is intended to be qualified under Code section 401(a), excluding the
MCN Traditional Option and the DTE Traditional Option of the Qualified Plan (“Cash Balance Plan”),
but for his election to defer any amount under the EDCP. Such contribution shall be determined and
credited as of the last day of each calendar year.



     Section 6.3. Prior Plan Payments. If a Participant is in pay status as of December
31, 2001 under one of the Prior Plans, or has terminated employment from a Participating Employer
prior to January 1, 2002, the amount and method of payment to such Participant shall continue under
the provisions of the applicable Prior Plan. Such payments shall be made by the Participating
Employer who last employed the Participant.



ARTICLE 7

Payment of Benefits




     Section 7.1. Form and Timing of Payment.



     (a) Pre-2005 Benefit. On the date that a Participant becomes entitled to a
distribution of his or her vested accrued benefit under the provisions of the Qualified Plan
applicable to the Participant (“Termination Date”), such Participant shall be entitled to receive
the Participant’s Pre-2005 Benefit provided under the Plan.



          (1) Form of Payment. As of the end of the quarter in which his or her Termination
Date occurs, the Participant’s Pre-2005 Benefit shall be present-valued in accordance with the
methodology set forth in the portion of the Qualified Plan in which the Participant participates.
Payment of a Participant’s Pre-2005 Benefit shall be made in cash in accordance with the
Participant’s selection on his or her Distribution Election Form either as (1) a joint and 100%
survivor annuity, (2) a joint and 50% survivor annuity, (3) a single life annuity or (4) in annual
payments over a period not less than one year and not more than 15 years as selected by the
Participant. If a Participant has not elected a payment option for his or her Pre-2005 Benefit
while he or she is actively employed by the Company or a Participating Employer, distribution shall
be made as a joint and 50% survivor annuity for Participants who are married as of the
Participant’s Termination Date and as a single life annuity for Participants who are single as of
the Participant’s Termination Date.




          (2) Timing of Payment. A lump sum distribution of the Participant’s Pre-2005 Benefit
shall be made as of March 1 following the Termination Date 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 whose employment has terminated for any reason other than death has
elected to receive his or her distribution in the form of an annuity, the timing of the first




4









 




payment shall be consistent with the timing for annuity payments specified in the portion of the
Qualified Plan in which the Participant participates. If a Participant has elected to receive his
or her distribution in annual installments, the first installment shall be made as of March 1
following the Participant’s Termination Date 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. The amount of any annual payments shall
be calculated to pay out over the specified period the Participant’s Pre-2005 Benefit as of his or
her Termination Date with interest credited annually on the declining balance at the Plan Interest
Rate. The amount of the annual payments to the Participant shall be adjusted as of each December
31 to reflect changes in the Plan Interest Rate. The distribution of a Participant’s Pre-2005
Benefit due to the Participant’s death is governed by Article 8.




          (3) Distribution of Small Amounts. Notwithstanding a Participant’s payment option, if
a Participant’s Pre-2005 Benefit is less than or equal to $10,000 as of any March 1 payment date,
the Participant’s Pre-2005 Benefit balance shall be paid in a single lump sum.




     (b) Post-2004 Benefit. Payment of a Participant’s Post-2004 Benefit will be made
after the Participant’s termination of employment or death.



          (1) Form of Payment. As of the date a Participant terminates employment or dies, the
Participant’s Post-2004 Benefit shall be present-valued in accordance with the methodology set
forth in the portion of the Qualified Plan in which the Participant participates. Payment of a
Participant’s Post-2004 Benefit shall be made in cash in accordance with the Participant’s
selection on his or her Distribution Election Form either as (1) a single lump sum or (2) in annual
payments over a period not less than two years and not more than 15 years as selected by the
Participant. If a Participant does not elect a payment option for his or her Post-2004 Benefit
within the Participant’s initial election period, distribution shall be made as a single lump sum.
The initial election period for a Participant who first accrues a Plan benefit after 2004 is the
30-day period beginning on the first day of the first calendar year beginning after the calendar
year in which the Participant first accrues a Plan benefit.




          (2) Timing of Payment.




               (A) If the Participant is not a “specified employee” for purposes of Code section 409A at the
time the Participant’s employment terminates for any reason other than death, a lump sum
distribution or the first annual installment of the Participant’s Post-2004 Benefit shall be made
on:



                    (i) January 1 following the end of the Plan Year in which the Participant terminates
employment, if the Participant did not make any election under Section 7.4(b)(2); or



                    (ii) January 1 coincident with or next following the latest date to which distribution was
deferred by an election under 

Section 7.4(b)(2), if the Participant made one or more elections
under Section 7.4(b)(2).



5









 





               (B) If a Participant is a “specified employee” for purposes of Code section 409A at the time
the Participant’s employment terminates for any reason other than death, a lump sum distribution or
first annual installment of the Participant’s Post-2004 Benefit will not be made before the latest
of:



                    (i) January 1 following the end of the Plan Year in which the Participant’s employment
terminated for a reason other than death, if the Participant did not make any election under
Section 7.4(b)(2); and



                    (ii) January 1 coincident with or next following the latest date to which distribution was
deferred by an election under section 7.4(b)(2), if the Participant made one or more elections
under Section 7.4(b)(2); and



                    (iii) the earlier of:



                         (I) the first day of the calendar month beginning more than 6 months after the date the
Participant’s employment terminated for a reason other than death; and



                         (II) the first day of the calendar month beginning after the Participant’s death.



          Subsequent annual installments of the Participant’s Post-2004 Benefit shall be made each
following January 1 of the installment period.




          The distribution of a Participant’s Post-2004 Benefit due to the Participant’s death is
governed by Article 8.




          (3) Calculation of Distribution.




               (A) General Rule. Except as provided in Section 7.1(b)(3)(B), the amount of any
annual payments shall be calculated to pay out over the specified period the Participant’s
Post-2004 Benefit as of his or her termination of employment date with interest credited annually
on the declining balance at the Plan Interest Rate.



               (B) Additional Rules.



                    (i) If an initial distribution is delayed under Section 7.1(b)(2)(B)(iii), the amount of any
annual payments will be calculated to pay out over the specified period the Participant’s Post-2004
Benefit as of the last day of the month preceding the payment date, with interest credited during
the delay period at the Plan Interest Rate.



                    (ii) If an initial distribution is delayed under Section 7.1(b)(2)(A) (ii) or
7.1(b)(2)(B)(ii), the amount of any annual payments will be calculated to pay out over the



6









 







specified period the Participant’s Post-2004 Benefit as of the December 31 preceding the payment
date, with interest credited during the delay period at the Plan Interest Rate.


               The amount of the annual payments to the Participant shall be adjusted as of each December 31
to reflect changes in the Plan Interest Rate.



          (4) Distribution of Small Amounts. Notwithstanding a Participant’s payment option, if
a Participant’s Post-2004 Benefit is less than or equal to the dollar limit under Code Section
402(g) in effect for the calendar year in which the Participant terminates employment or dies, the
Participant’s Post-2004 Benefit balance shall be paid in a single lump sum to the extent permitted
by Code Section 409A and the related Treasury Regulations.




     Section 7.2. Increase in Section 415 Limit. If a Participant has elected to receive
an Annuity under the Qualified Plan and such Annuity is increased subsequent to the Participant’s
Termination Date due to an increase in the Code Section 415 limit, the Participant’s Plan Benefit
shall be adjusted accordingly on a prospective basis.



     Section 7.3. Recomputation of Plan Benefits Upon Reemployment.. If a Participant
entitled to a distribution under the qualified Plan receives all or part of his or her Plan benefit
and is thereafter reemployed, such Participant’s Plan benefit shall be recalculated upon the
Participant’s subsequent termination of employment. Plan payments shall cease upon reemployment.
If a Participant’s recalculated Plan benefit results in an additional payment to the Participant,
such additional payment shall be made in accordance with Section 7.1. Such recalculations shall be
made in accordance with the procedures under the Qualified Plan. If such Participant’s
recalculated Plan benefit shows that the Participant’s Plan benefit has been overpaid after
offsetting for any Plan benefits previously received, the Participant shall be required to make
restitution to the Participating Employer, within a period of twelve months of such subsequent
termination, in an amount equal to such overpayment, plus interest at the Plan Interest Rate.



     Section 7.4. Change in Payment Option.



     (a) Pre-2005 Benefit. The payment option selected by a Participant for the
Participant’s Pre-2005 Benefit may be changed at any time while he or she is actively employed by
the Company or a Participating Employer by the Participant submitting a new payment selection to
the Committee.



     (b) Post-2004 Benefit.



          (1) Before January 1, 2009, a Participant may change the distribution option previously
selected for the Participant’s Post-2004 Benefit by filing a written election with the Committee
before January 1, 2009 that satisfies both of the following:



               (A) The Participant’s election does not defer to a date after December 31, 2008 any
distribution of the Post-2004 Benefit otherwise required to be made before January 1, 2009; and



7









 





               (B) The Participant’s election does not accelerate to a date before January 1, 2009 any
distribution of the Post-2004 Benefit otherwise required to be made after December 31, 2008.



          (2) After December 31, 2008, a Participant may elect to change the distribution option
previously selected for the Participant’s Post-2004 Benefit by filing a written election with the
Committee that satisfies both of the following:




               (A) The Participant’s election is filed with the Committee at least 12 months before the
earliest date on which the distribution of the Post-2004 Benefit would begin under the
Participant’s then-current distribution election; and



               (B) The Participant’s election designates that distribution of the Post-2004 Benefit will
begin at least 5 years after the earliest date on which distribution of the Post-2004 Account would
begin under the Participant’s then-current distribution election.



     Any election by the Participant after December 31, 2008 regarding the form in which the
Participant’s Post-2004 Benefit will be distributed will apply to the Participant’s entire
Post-2004 Benefit.



     Section 7.5. Payments Subject to Golden Parachute Provisions. Notwithstanding the
above, if payment at the time specified in the first sentence of this Article 7, Section 7.1 would
subject the Participant to the excise tax under Section 4999 of the Code, at the discretion of the
Company or Participating Employer, as applicable, payment of the Participant’s Pre-2005 Benefit
shall be deferred until the earlier of (a) the date that would have been the Participant’s Normal
Retirement Date, Early Retirement Date or Disability Retirement Date, (b) death of the Participant,
or (c) total and permanent disability or legally established mental incompetency of the
Participant.



     Section 7.6. Transfer to an Affiliated Company. Benefits for a Participant who
transfers employment from one Employer to an Affiliated Company shall be subject to the transfer
provisions of the Qualified Plan. Such a transfer of employment shall cause a transfer of the Plan
benefit maintained by a Participating Employer for a Participant, if the new Employer has adopted
the Plan, and the former Employer transfers cash to the new Employer equal to the amount of the
benefit transferred. In all other events, a transfer of employment shall not cause a transfer of
the benefit maintained by an Employer for a Participant.



     Section 7.7. Unscheduled Withdrawals. A former Participant receiving distributions in
installments is permitted to make unscheduled withdrawals from the Participant’s Pre-2005 Benefit
as described below.



     (a) Election. A former Participant may request in writing to the Vice President,
Human Resources, an unscheduled partial withdrawal or entire withdrawal of the present value of the
former Participant’s undistributed Pre-2005 Benefit, which will be paid within 3 0 days in a single
lump sum.



8









 





     (b) Withdrawal Penalty. There will be a penalty deducted from the present value of
the former Participant’s undistributed Pre-2005 Benefit prior to an unscheduled withdrawal equal to
10% of the present value of the former Participant’s undistributed Pre-2005 Benefit as of the date
the unscheduled withdrawal request is received by the Vice President, Human Resources.



ARTICLE 8

Beneficiary in the Event of Death




     Section 8.1. Death After Commencement of Benefits. If a Participant dies after
payment of his or her Plan benefit begins in accordance with Section 7.1, the undistributed balance
to which such Participant would have been entitled, if any, shall continue to be distributed to the
Participant’s beneficiary (as designated under Section 8.3) in accordance with the method of
distribution being used prior to the Participant’s death.



     Section 8.2. Death Prior to Commencement of Benefits.



     (a) Pre-2005 Benefit. If a Participant dies before distribution of his or her
Pre-2004 Benefit begins in accordance with Section 7.1, the Participant’s Pre-2005 Benefit, if any,
shall be determined in accordance with the surviving spouse provisions of the portion of the
Qualified Plan in which the Participant participated prior to his or her death.



     (b) Post-2004 Benefit. If a Participant dies before distribution of his or her
Post-2004 Benefit begins in accordance with Section 7.1, the Participant’s Post-2004 Benefit will
be paid to the Participant’s beneficiary in a single lump sum within 90 days of the Participant’s
death.



     Section 8.3. Beneficiary Designation. Each Participant who has elected to receive his
or her Pre-2005 Benefit distribution in the form of a joint and 100% survivor annuity or joint and
50% survivor annuity shall have the right to designate a contingent annuitant to receive the
survivor portion of the annuity payment upon the death of such Participant. Each Participant who
has elected to receive his or her Pre-2005 Benefit distribution in the form of annual payments over
a period of one to 15 years shall have the right to designate a beneficiary or beneficiaries to
receive any undistributed annual payments upon the death of such Participant. Any Participant who
has elected to receive his or her Pre-2005 Benefit distribution in the form of a single life
annuity shall not be allowed to designate a beneficiary and benefit payments will cease upon the
Participant’s death. A Participant shall have the right to designate a beneficiary or
beneficiaries to receive the Participant’s Post-2004 Benefit in a single lump sum following the
Participant’s death.



ARTICLE 9

Unfunded Plan




     The Plan shall be unfunded within the meaning of sections 201(2), 301(a)(3) and 401(a)(1)
ERISA. All benefits payable under the Plan shall be paid from the general assets of the Company or
a Participating Employer, as applicable. The Company and any Participating Employer shall not be
required to set aside or hold in trust any funds for the benefit of a Participant or beneficiary,
each



9









 







of whom shall have the status of a general unsecured creditor with respect to the Company’s or
Participating Employer’s obligation to make benefit payments pursuant to the Plan. Any assets of
the Company or a Participating Employer available to pay Plan benefits shall be subject to the
claims of the general creditors of the Company and the Participating Employer and may be used by
the Company and Participating Employer in their sole discretion for any purpose.



ARTICLE 10

Arbitration




     In the event of any dispute, claim, or controversy (hereinafter referred to as a “Grievance”)
between a Participant (or beneficiary) and the Company with respect to the payment of benefits to
such Participant or beneficiary 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 10.2.



     (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 Federal Arbitration Act and the Employee Benefit Plan Claims 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. Because
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 Participant 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.



10









 





ARTICLE 11

Amendment and Termination




     The Plan shall be administered by the Committee appointed pursuant to the provisions of the
Qualified Plan. The Committee shall have the same powers and duties, and shall be subject to the
same limitations, as are described in the Qualified Plan.



     The Company may amend or terminate the Plan at any time and for any reason. The power to
amend or modify the Plan shall rest solely with the Committee. No such amendment or termination
shall affect the rights of Participants or beneficiaries to the vested portion of amounts credited
to Participants’ benefits as of the date of such amendment or termination. In the event of a
termination of the Plan, each Participant’s benefit shall be fully vested.



ARTICLE 12

Miscellaneous




     Section 12.1. Benefits Non-Assignable. 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.



     Section 12.2. No Employment Rights. Nothing contained in the Plan and no action taken
pursuant to the provisions of the Plan shall be construed as a contract of employment between a
Participant and the Company or a Participating Employer, or as a right of any Participant to be
continued in the employment of the Company or a Participating Employer, or as a limitation of the
right of the Company or a Participating Employer to discharge any Participant at any time, with or
without cause, or as a limitation of the right of the Participant to terminate employment at any
time.



     Section 12.3. Law Applicable. To the extent not preempted by federal law, this Plan
and all actions hereunder shall be governed by and construed according to the laws of the State of
Michigan.



     Section 12.4. Legal Fees and Expenses. The Company shall pay all reasonable legal
fees and expenses that any Participant may incur as a result of the Company contesting the
validity, enforceability, or such Participant’s interpretation of, or determinations under this
Plan.



     Section 12.5. Successors. In the event of any consolidation, merger, acquisition or
reorganization of the Company, the obligations of the Company under this Plan shall continue and be
binding upon the Company and its successors.



     Section 12.6. 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



11









 







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.



     Section 12.7. 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.



ARTICLE 13

Change in Control Provisions




     Section 13.1. General. In the event of a Change in Control, as defined in Section
13.5, notwithstanding any other provision of the Plan, the provisions of this Article 13 shall be
applicable and shall supersede any conflicting provisions of the Plan.



     Section 13.2. Transfer to Rabbi Trust. The Company shall establish a trust (the “Rabbi
Trust”) that is intended to be an unfunded arrangement which shall 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 (i) an amount as of the date of the Change in Control equal to each
Participant’s assumed benefit under the Plan as of the Participant’s Normal Retirement Date,
assuming annual Base Salary increases for the Participant of 5%, all as determined by the Company
Actuaries; plus (ii) an amount deemed necessary to pay estimated Rabbi Trust administrative
expenses for the following five (5) years, as determined by the Company’s Accountants. Assets
transferred in accordance with the preceding sentence shall be in the form of cash. The Company
and/or a Participating Employer 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.



     Section 13.3. Joint and Several Liability. Upon and at all times after a Change in
Control, the liability under the Plan of the Company and each Participating Employer that has
adopted the Plan shall be joint and several, so that the Company and each such Participating
Employer shall each be liable for all obligations under the Plan to each Participant covered by the
Plan, regardless of the corporation by which such Participant is employed.



     Section 13.4. 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.



     (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



12









 







such claimant in seeking a resolution of his or her claim, including reasonable fees, costs and
expenses relating to arbitration.



     Section 13.5. 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



13









 







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 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.



     IN WITNESS WHEREOF, the undersigned official of the Company has executed this Plan as of this
24 day of November 2008.



	 	 	 	 	 
	 	DTE ENERGY COMPANY

 	 
	 	By:  	/s/ Larry E. Steward
 	 
	 	 	     Larry E. Steward 	 
	 	 	     Vice President, Human Resources 	 
	 




14