EX-10.77






Exhibit 10-77




DTE ENERGY COMPANY




SUPPLEMENTAL SAVINGS PLAN




Amended and Restated Effective January 1, 2005





 









 








TABLE OF CONTENTS




	 	 	 	 	 
	PREAMBLE
	 	 	1	 
	 
	 	 	 	 
	SECTION 1. TITLE, PURPOSE AND EFFECTIVE DATE
	 	 	1	 
	1.1. Title
	 	 	1	 
	1.2. Purpose
	 	 	1	 
	1.3. Effective Date
	 	 	2	 
	1.4 Compliance with Code Section 409A
	 	 	2	 
	 
	 	 	 	 
	SECTION 2. DEFINITIONS
	 	 	2	 
	2.1 Post-2004 Account
	 	 	2	 
	2.2 Pre-2005 Account
	 	 	2	 
	 
	 	 	 	 
	SECTION 3. ELIGIBILITY AND PARTICIPATION
	 	 	3	 
	3.1. Eligibility to Participate
	 	 	3	 
	3.2. Election to Participate
	 	 	3	 
	 
	 	 	 	 
	SECTION 4. PARTICIPANTS’ ACCOUNTS
	 	 	4	 
	4.1. Establishment of Accounts
	 	 	4	 
	4.2. Credits and Debits to Participants’ Accounts
	 	 	4	 
	4.3. Election of Accounts
	 	 	5	 
	4.4. Change of Election for Accounts
	 	 	5	 
	4.5. Transfer Between Accounts
	 	 	5	 
	 
	 	 	 	 
	SECTION 5. HARDSHIP WITHDRAWALS
	 	 	5	 
	 
	 	 	 	 
	SECTION 6. PAYMENT OF BENEFITS
	 	 	6	 
	6.1. Form and Timing of Payment
	 	 	6	 
	6.2. Change In Payment Option
	 	 	8	 
	6.3. Revocation of Designation as Executive
	 	 	9	 
	6.4. Payments Subject to Golden Parachute Provisions
	 	 	9	 
	6.5. Transfer to an Affiliated Company
	 	 	9	 
	6.6. Unscheduled Withdrawals
	 	 	10	 
	 
	 	 	 	 
	SECTION 7. SELECTION OF AND PAYMENTS TO A BENEFICIARY
	 	 	10	 
	7.1. Beneficiary Designation
	 	 	10	 
	7.2. Change in Beneficiary
	 	 	10	 
	7.3. Survivor Benefit
	 	 	11	 
	 
	 	 	 	 
	SECTION 8. ADMINISTRATION
	 	 	11	 
	 
	 	 	 	 
	SECTION 9. ADDITIONAL PROVISIONS AFFECTING BENEFITS
	 	 	11	 
	 
	 	 	 	 
	SECTION 11. AMENDMENT, SUSPENSION, AND TERMINATION
	 	 	11	 
	10.1. Right to Amend or Terminate
	 	 	11	 






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	10.2. Right to Suspend
	 	 	11	 
	10.3. Partial ERISA Exemption
	 	 	11	 
	 
	 	 	 	 
	SECTION 12. MISCELLANEOUS
	 	 	12	 
	11.1. Unfunded Plan
	 	 	12	 
	11.2. No Right to Continued Employment
	 	 	12	 
	11.3. Prohibition Against Alienation
	 	 	12	 
	11.4. Savings Clause
	 	 	12	 
	11.5. Payment of Benefit of Incompetent
	 	 	12	 
	11.6. Spouse’s Interest
	 	 	13	 
	11.7. Successors
	 	 	13	 
	11.8. Gender, Number and Heading
	 	 	13	 
	11.9. Legal Fees and Expenses
	 	 	13	 
	11.10. Choice of Law
	 	 	13	 
	11.11. Affiliated Employees
	 	 	13	 
	11.12. Plan Document
	 	 	13	 
	 
	 	 	 	 
	SECTION 13. ARBITRATION
	 	 	14	 
	12.1 Arbitration Process
	 	 	14	 
	12.2 Effect of Plan Termination
	 	 	14	 
	 
	 	 	 	 
	SECTION 14. CHANGE IN CONTROL PROVISIONS
	 	 	14	 
	13.1. General
	 	 	14	 
	13.2. Transfer to Rabbi Trust
	 	 	15	 
	13.3. Lump Sum Payments
	 	 	15	 
	13.4. Joint and Several Liability
	 	 	15	 
	13.5. Dispute Procedures
	 	 	15	 
	13.6. Definition of Change in Control
	 	 	15	 






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DTE ENERGY COMPANY

SUPPLEMENTAL SAVINGS PLAN

Amended and Restated Effective January 1, 2005




PREAMBLE




     Effective May 22, 1989 (and as amended periodically), Detroit Edison established The Detroit
Edison Company Savings Reparation Plan and effective May 31, 1988 (and as amended periodically),
MCN Energy Group established the MCN Energy Group Supplemental Savings Plan to offer a retirement
savings alternative for those eligible Executives whose permissible contributions to the companies’
401(k) plan were limited by the Internal Revenue Code (Detroit Edison plan: 401(a)(17); MCN plan:
401(a)(17), 402(g), 415 limitation on benefits and contributions). Effective December 6, 2001, DTE
Energy Company (“DTE”) hereby terminates The Detroit Edison Company Savings Reparation Plan and
effective January 1, 2002 hereby terminates the MCN Energy Group Supplemental Savings Plan and
replaces them with the DTE Energy Company Supplemental Savings Plan (the “Plan”), as described
herein. Effective December 6, 2001, all benefits under The Detroit Edison Company Savings
Reparation Plan and effective January 1, 2002 all benefits under the MCN Energy Group Supplemental
Savings Plan are transferred to the Plan. Benefits under the Plan are available to eligible
Executives and key management employees of DTE Energy Company and its Affiliated Companies. DTE
Energy Company has established this Plan to benefit Executives of DTE Energy Company and its
Affiliated Companies in a manner that will be in the best interest of DTE Energy Company and its
shareholders.



SECTION 1.

TITLE, PURPOSE AND EFFECTIVE DATE




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



     1.2. Purpose. The purpose of the Plan is to promote the success of DTE Energy Company
(hereinafter referred to as “DTE”) by:



          (a) providing selected Executives with the ability to defer compensation on a pre-tax basis to
permit supplemental retirement savings; and




          (b) providing a mechanism for selected Executives to receive benefits that they otherwise
would have received under the Qualified Plan but for Internal Revenue Code (“Code”) Sections
401(a)17, 402(g), 415 or any other provision of the Code or other law that the Committee hereafter
designates.




          The principal purpose of the Plan is to provide deferred compensation for a select group of
management or highly compensated Employees of DTE and any other employer that has
adopted the Plan with the consent of DTE (a “Participating Employer”), and who has been




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specifically designated by the Chief Executive Officer of a Participating Employer to be eligible
for Plan participation (an “Executive”). Such an employee shall remain an Executive as long as
this designation is not revoked by the Committee.




          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 the Employee Retirement
Income Security Act of 1974, as amended (hereinafter referred to as “ERISA”) and, therefore, to be
exempt from the provisions of Parts 2, 3 and 4 of Title I of ERISA.




     1.3. Effective Date. The Plan was originally effective December 6, 2001. This
amendment and restatement of the Plan is effective 

January 1, 2005, unless another effective date
is specified for a particular Plan provision.



     1.4 Compliance with Code Section 409A. 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 Section 1.04.



          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.




SECTION 2.

DEFINITIONS




     The words and phrases used in the Plan shall have the same meanings as provided under the DTE
Energy Company Savings and Stock Ownership Plan (the “Qualified Plan”), effective January 1, 2002
and as amended from time to time, unless otherwise defined in the Plan or the context clearly
requires otherwise.



     2.1 Post-2004 Account. “Post-2004 Account” means the portion of a Participant’s
Account attributable to credits and debits made to the Participant’s Account under Section 4.2(a)
and (b) after December 31, 2004, and earnings credited or losses debited to the Participant’s
Account under Section 4.2 attributable to these Section 4.2(a) and (b) credits and debits.



     2.2 Pre-2005 Account. “Pre-2005 Account” means the portion of a Participant’s Account
attributable to credits and debits made to the Participant’s Account under Section 4.2(a)
and (b) before January 1, 2005, and earnings credited or losses debited to the Participant’s
Account under Section 4.2 attributable to these Section 4.2(a) and (b) credits and debits.



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SECTION 3.

ELIGIBILITY AND PARTICIPATION




     3.1. Eligibility to Participate. Only the following individuals shall be eligible to
participate in the Plan: (a) any Executive whose contributions under the Qualified Plan are
limited because of the limitation on compensation under Section 401(a)(17) of the Code, the
limitation on elective deferrals under Section 402(g) of the Code, the limitation on benefits and
contributions under Section 415 of the Code, or any other provision of the Code or other law that
the Committee hereafter designates; and (b) such other management or highly compensated Employees
as shall be approved by the Chief Executive Officer of an Employer that has adopted the Plan.



          (a) Effective Date for Participation. Each employee of the Company and Participating
Affiliated Companies who is employed at the level of Director or above (or equivalent) and who is
designated as an Executive shall be eligible to participate in the Plan effective as of the later
of (i) the date determined by the Vice President, Human Resources, or (ii) the date on which the
employee is formally notified of his or her eligibility to participate.




          (b) Determination of Executive Status. The Vice President, Human Resources shall
designate employees as Executives. The Vice President, Human Resources may revoke such designation
prior to any Plan Year with respect to the Executive’s ability to defer future compensation payable
by the Company or Participating Affiliated Company; provided, however, that no such revocation
shall adversely affect any amounts previously deferred by such Executive under the Plan. Employees
who were employed at the level of Director at MCN Energy Group Inc. or one of its subsidiaries
prior to June 1, 2001, but were not appointed to a level of Director or above in the Leader
Staffing and Selection process during the second quarter of 2001, shall be considered Executives
for the 2002 Plan year only; unless or until they are otherwise designated as Executives.




          (c) Mid-Year Participation. For Plan Years before 2005, to the extent an employee is
designated as an Executive, and formally notified of his or her eligibility to participate in the
Plan during a Plan Year, the Executive may elect to participate any time thereafter.




          For Plan Years after 2004, an employee who is designated as an Executive and wishes to
participate in the Plan for the Plan Year in which the employee is so designated must file a
written election with the Committee within 30 days of the date the employee is formally notified of
his or her eligibility to participate. Failure to file a written election before the end of this
30-day period precludes the Executive from participating in the Plan until the beginning of the
next Plan Year.




     3.2. Election to Participate. An executive who is eligible to participate may become
a participant in the Plan (a “Participant”) by filing a written election with the Committee on a
form approved by the Committee. The Executive’s election shall authorize the Employer to defer the



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amount of such Executive’s Compensation pursuant to Sections 4.2(a) and (c) hereof and shall
evidence the Executive’s acceptance of and agreement to all the provisions of the Plan.



          The Executive’s election must be made no later than December 31 of the year that immediately
precedes the year for which it applies. However, the first election by any Executive to
participate in this Plan shall be effective for any Compensation earned after the election is
received by the Committee and after contributions to the Qualified Plan are limited in accordance
with Section 3.1 above. An election shall be irrevocable for the current calendar year. An
election shall be irrevocable for future calendar years unless a written revocation is filed with
the Committee prior to the first day of the calendar year for which the revocation is desired.




SECTION 4.

PARTICIPANTS’ ACCOUNTS




     4.1. Establishment of Accounts. The Employer shall establish accounts for each of its
Executives who is a Participant in the Plan. Effective January 1, 2002, all benefits under The
Detroit Edison Company Savings Reparation Plan and the MCN Energy Group Supplemental Savings Plan
are transferred to this Plan. Separate hypothetical bookkeeping accounts corresponding in name to
the separate funds under the Qualified Plan shall be maintained for each Participant. Credits
under Sections 4.2(a) and (b) hereof shall also be maintained in separate accounts. The
hypothetical bookkeeping accounts shall be maintained as unfunded general bookkeeping accounts and
all amounts represented by the accounts shall remain a part of the general funds of the Employer of
such Participant, subject to the claims of its general creditors. Nothing in the Plan and no
action taken pursuant to the provisions of the Plan shall be deemed to create a trust or fund of
any kind or to create any fiduciary relationship. The obligation to make payments under this Plan
shall be and remain an unsecured, unfunded general obligation of the Employer of the particular
Participant. Each Executive who is a Participant in the Plan shall be provided a quarterly
statement of the unfunded accounts maintained for the Participant.



     4.2. Credits and Debits to Participants’ Accounts. As of the end of a pay period,
total credits shall be made to the hypothetical bookkeeping accounts maintained for a Participant
as set forth below:



          (a) An amount equal to the difference between (1) and (2) below:




               (1) the amount that such Participant would have contributed to the Qualified Plan for such pay
period, assuming (x) the Participant satisfied the eligibility requirements set forth in the
Qualified Plan and (y) the allotments of such Participant under the Qualified Plan were not limited
by the application of any restriction set forth in Section 3.1(a)
above, or any provision of the Qualified Plan relating to the limitations described in Section
5.1(a) above;



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               (2) the amount that such Participant actually contributed to the Qualified Plan for such pay
period.



          (b) An amount equal to the difference between (1) and (2) below:




               (1) the amount that the Employer of such Participant would have contributed to the Qualified
Plan on behalf of such Participant for such pay period if the Participant had contributed the
amount set forth in (a)(1) above to the Qualified Plan during such pay period;



               (2) the amount that the Employer actually contributed to the Qualified Plan on behalf of such
participant for such pay period.



          The total credits under (a) and (b) of this Section shall be allocated to the specific
accounts elected by the Participant as provided under Section 4.3 hereof. Each hypothetical
bookkeeping account shall be credited with an amount representing earnings or debited with an
amount representing losses on a daily basis. Earnings or losses shall be calculated using the
daily valuation methodology employed by the recordkeeper for each corresponding fund under the
Qualified Plan.




     4.3. Election of Accounts. Subject to the sole discretion of the Committee, each
Participant shall, by filing an election with the Committee in a form approved by the Committee,
elect the accounts which are to be used for recording credits under Sections 4.2(a) and (b) hereof.



          A Participant may direct that credits under Sections 6.2(a) and (b) be made to any account
corresponding in name to the funds under the Qualified Plan that are available to accept
contributions or allotments, provided, however, that the Committee may change available investment
funds or override a Participant’s investment selection at any time.




     4. 4. Change of Election for Accounts. Any election of accounts given by a Participant
under the preceding Section shall be deemed to be a continuing election until changed by the
Participant. A Participant may change any such election as of any normal business day of any month
by giving prior notice of such change to the Plan recordkeeper in the form prescribed by the
Committee.



     4.5. Transfer Between Accounts. Transfers between accounts shall be implemented on
any normal business day of any month upon directions to the Plan recordkeeper in the form
prescribed by the Committee.



SECTION 5.

HARDSHIP WITHDRAWALS




     A Participant may request, upon written notice to the Committee, a withdrawal from his or her
accounts, if the withdrawal is on account of financial hardship as defined in the Qualified Plan
with respect to amounts in the Participant’s Pre-2005 Account or on account of financial



5









 




hardship
as defined in Code Section 409A and the related Treasury Regulations with respect to amounts in the
Participant’s Post-2004 Account. A financial hardship shall first be satisfied from the DTE Energy
Company Executive Deferred Compensation Plan to the extent possible; then from the Plan; and
finally from the Qualified Plan. The amount of such withdrawal shall be limited to the amounts
deferred under Section 4.2(a) hereof and any corresponding amounts transferred from The Detroit
Edison Company Savings Reparation Plan and the MCN Energy Group Supplemental Savings Plan, or the
total value of the aggregate accounts maintained under Section 4.2(a) hereof and any corresponding
amounts transferred from The Detroit Edison Company Savings Reparation Plan and the MCN Energy
Group Supplemental Savings Plan as of the end of the prior month, whichever is smaller.




     The determination of the existence of financial hardship and the amount required to be
distributed to meet the need created by the hardship shall be made by the Committee. Except as
permitted under Section 6.6, no other withdrawals or loans are permitted under this Plan.



SECTION 6.

PAYMENT OF BENEFITS




     6.1. Form and Timing of Payment.



          (a) Pre-2005 Account. On the date that a Participant becomes entitled to a
distribution of his or her account in the Qualified Plan (the “Termination Date”), such Participant
shall be entitled to receive the amount credited to his or her Pre-2005 Account in the Plan. All
Pre-2005 Accounts under this Plan are 100% vested, subject to adjustment for hypothetical earnings
and losses. All distributions from a Participant’s Pre-2005 Account shall be paid out at in cash
as of March 1 of the year following the year in which Participant’s Termination Date occurs.




          Payment of a Participant’s Pre-2005 Account shall be made in accordance with the Participant’s
selection on his or her Deferral Election Form either in annual payments over a period of not less
than two years and not more than 15 years, or in one lump sum by the Participating Employer
maintaining the Pre-2004 Account. If no payment election has been made, the Participant’s Pre-2005
Account shall be paid in one lump sum.




          In addition, if a Participant’s Pre-2005 Account is less than or equal to $10,000 as of his or
her Termination Date, the Participant’s Pre-2005 Account shall be paid in one lump sum.




          Payment of a Participant’s Pre-2005 Account due to a Participant’s death is governed by
Section 7.3.




          (b) Post-2004 Account. On the date that a Participant terminates employment other
than because of death, the Participant shall be entitled to receive the amount credited to his or
her Post-2004 Account in the Plan. All Post-2004 Accounts under this Plan are 100% vested, subject
to adjustment for hypothetical earnings and losses.




6









 





               (1) 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 Account shall be made
on:



                    (A) 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 6.2(b)(2); or



                    (B) January 1 coincident with or next following the latest date to which distribution was
deferred by an election under Section 6.2(b)(2), if the Participant made one or more elections
under Section 6.2(b)(2).



               (2) 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 Account will not be made before the latest
of:



                    (A) January 1 following the end of the Plan Year in which the Participant’s employment
terminated, if the Participant did not make any election under Section 6.2(b)(2); and



                    (B) January 1 coincident with or next following the latest date to which distribution was
deferred by an election under section 6.2(b)(2), if the Participant made one or more elections
under Section 6.2(b)(2); and



                    (C) the earlier of:



                         (i) the first day of the calendar month beginning more than 6 months after the date the
Participant’s employment terminated; 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.




     Payment of a Participant’s Post-2004 Account shall be made in accordance with the
Participant’s selection on his or her Deferral Election Form either in annual payments over a
period of not less than two years and not more than 15 years, or in one lump sum by the
Participating Employer maintaining the accounts. If no payment election has been made, the
Participant’s Post-2004 Account shall be paid in one lump sum. Any election by the Participant
after December 31, 2008 regarding the form in which the Participant’s Post-2004 Account will be
distributed will apply to the Participant’s entire Post-2004 Account and is subject to the
restrictions imposed by Section 6.2 on changes to elections of timing or form of distributions.



7









 





          In addition, if a Participant’s Post-2004 Account is less than or equal to the dollar limit
under Code Section 402(g) for the calendar year in which the Participant terminates employment, the
Participant’s Post-2004 Account shall be paid in one lump sum to the extent permitted by Code
Section 409A and the related Treasury Regulations.




          Payment of a Participant’s Post-2004 Account due to a Participant’s death is governed by
Section 7.3.




          (c) Calculation of Distribution.




               (1) General Rule. The amount of the annual payments shall be calculated to be paid
out over the specified period, based on the entire balance in the Participant’s hypothetical
bookkeeping account as of his or her Termination Date. Earnings and losses based on the
hypothetical bookkeeping account investments shall be credited to the Participant’s hypothetical
bookkeeping account through December 31 of each Plan Year in which the Participant has a balance in
such hypothetical bookkeeping account. The distribution to a Participant shall be paid in cash.
Except as provided in Section 6.1(c)(2), the initial distribution shall be determined by dividing
the value of the Participant’s account determined as of December 31 of the Plan Year in which the
Participant’s employment terminated, by the number of installment payments to be made. The amount
distributed to the Participant thereafter shall be recalculated each year to reflect changes in the
hypothetical bookkeeping account balance through December 31 of such subsequent calendar year and
the remaining number of installment payments to be made.



               (2) Additional Rules for Post-2004 Account.



                    (A) An initial distribution delayed under Section 6.1(b)(2)(C) will be determined by dividing
the value of the Participant’s Post-2004 Account determined as of the last day of the month
preceding the payment date, by the number of installment payments to be made.



                    (B) An initial distribution delayed under Section 6.1(b)(1)(B) or 6.1(b)(2)(B) will be
determined by dividing the value of the Participant’s Post-2004 Account as of the December 31
preceding the payment date, by the number of installment payments to be made.



     6.2. Change In Payment Option.



          (a) Pre-2005 Account. The payment option selected by the Participant for the
Participant’s Pre-2005 Account 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.




8









 





          (b) Post-2004 Account.




               (1) Before January 1, 2009, a Participant may change the distribution option previously
selected for the Participant’s Post-2004 Account 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 Account otherwise required to be made before January 1, 2009; and




                    (B) The Participant’s election does not accelerate to a date before January 1, 2009 any
distribution of the Post-2004 Account 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 Account 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 Account would begin under the
Participant’s then-current distribution election; and



                    (B) The Participant’s election designates that distribution of the Post-2004 Account 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.



          A Participant’s election of a different form of distribution on the Participant’s election to
participate in the Plan for any Plan Year after 2008 will be treated as a change to the
Participant’s election of a form of distribution for the Participant’s entire Post-2004 Account.




     6.3. Revocation of Designation as Executive. Except as provided in Section 3.1(b)
hereof, a Participant whose designation as an Executive is revoked prior to the Participant’s
retirement, death, termination or disability shall not be permitted to make deferrals under the
Plan subsequent to the date of such revocation.



     6.4. Payments Subject to Golden Parachute Provisions. Notwithstanding the above, if
payment at the time specified in the first sentence of this Section would subject the Participant
to the excise tax under Section 4999 of the Code, at the discretion of the applicable Employer,
payment of the Participant’s Pre-2005 Account 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 incompetence of the Participant.



     6.5. Transfer to an Affiliated Company. Benefits for a Participant who transfers
employment from one Employer to an Affiliated Company shall be subject to the provisions of the
Qualified Plan. Such a transfer of employment shall cause a transfer of the accounts



9









 







maintained by
an 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 accounts transferred. In all other
events, a transfer of employment shall not cause a transfer of the accounts maintained by an
Employer for a Participant.



     6.6. Unscheduled Withdrawals. A Participant or a former Participant receiving
distributions in annual installments is permitted to make unscheduled withdrawals from the
Participant’s or former Participant’s Pre-2005 Account as described below:



          (a) Election. A Participant may request in writing to the Vice President, Human Resources, an
unscheduled partial withdrawal or entire withdrawal of the balance in the Participant’s Pre-2005
Accounts, which will be paid within 30 days in a single lump sum. A former Participant may request
in writing to the Vice President, Human Resources, an unscheduled partial withdrawal or entire
withdrawal of the undistributed balance of the former Participant’s Pre-2005 Accounts, which will
be paid within 30 days in a single lump sum.




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




          (c) Suspension of Participation. If a Participant elects an unscheduled withdrawal, the
Participant’s election to participate in the Plan for the current calendar year will not be revoked
unless permitted by Code Section 409A. However, the Participant will not again be designated as an
Executive eligible to participate in the Plan until the first day of the second calendar year
following the calendar year in which the withdrawal was made.




SECTION 7.

SELECTION OF AND PAYMENTS TO A BENEFICIARY




     7.1. Beneficiary Designation. A Participant shall designate, on a form provided by the
Committee, a beneficiary or beneficiaries to receive any distribution to made under Section 6
hereof upon the death of the such Participant, or, in the case of a Participant who dies subsequent
to termination of his or her employment put prior to distribution of the entire amount to which the
Participant is entitled under the Plan, any undistributed balance to which such Participant would
have been entitled. If a Participant has not designated a beneficiary, or if a designated
beneficiary is not living or in existence at the time of a Participant’s death, any death
benefits payable under the Plan shall be paid to the Participant’s Spouse, if then living, and if
the Participant’s Spouse is not then living, to the Participant’s estate.



     7.2. Change in Beneficiary. A Participant may change the designated beneficiary from
time to time by filing a new written designation with the Committee. Such designation shall be
effective upon receipt by the Committee.



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     7.3. Survivor Benefit. If a Participant dies with an account balance under this Plan,
his or her beneficiary shall be entitled to receive a distribution of the Participant’s account,
including distributions delayed under Section 6.1(b) and any annual payments elected by the
Participant but not paid at the time of the Participant’s death. The distribution shall be paid in
a lump sum within ninety (90) days following the Participant’s death.



SECTION 8.

ADMINISTRATION




     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. However, unlike the limitation on the
Committee’s power to amend or modify the Qualified Plan, the Committee shall have full power to
amend or modify the Plan in all respects.



SECTION 9.

ADDITIONAL PROVISIONS AFFECTING BENEFITS




     Deferrals hereunder shall be subject to applicable FICA withholding laws. Benefit payments
hereunder shall be subject to applicable federal, state and 1ocal tax withholding laws.



SECTION 10.

AMENDMENT, SUSPENSION, AND TERMINATION




     10.1. Right to Amend or Terminate. 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. Such amendment, modification or termination may modify or eliminate any benefit
hereunder except that such amendment, modification or termination shall not affect the rights of
Participants or beneficiaries to the Participant’s account as of the date of such amendment or
termination.



     10.2. Right to Suspend. If the Board of Directors determines that payments under the
Plan would have a material adverse affect on the Company’s ability to carry on its business, the
Board of Directors may suspend payments of Pre-2005 Accounts temporarily for such time as in
its sole discretion it deems advisable, but in no event for a period in excess of one year.
If the Board of Directors determines that payments under the Plan will jeopardize the Company’s
ability to continue as a going concern, the Board of Directors may suspend payments of Post-2004
Accounts until the first taxable year when payment will not have that effect. The Company shall
pay such suspended payments in a lump sum immediately upon the expiration of the period of
suspension.



     10.3. Partial ERISA Exemption.  The Plan is intended to provide benefits for
“a select group of management or highly compensated employees” within the meaning of sections 201,



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301 and 401 of ERISA, and therefore to be exempt from sections 2, 3 and 4 of Title I of ERISA.
Accordingly, the Plan shall terminate and existing Account balances shall be paid in a single
lump-sum (to the extent permitted by Code section 409A and the related Treasury Regulations for
Post-2004 Accounts) and no further benefits shall be paid hereunder in the event it is determined
by a court of competent jurisdiction or by an opinion of counsel that the Plan constitutes an
employee pension benefit plan within the meaning of section 3(2) of ERISA which is not so exempt.



SECTION 11.

MISCELLANEOUS




     11.1. 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 Company’s
general assets. The Company shall not be required to set aside or hold in trust any funds for the
benefit of a Participant or Beneficiary, each of whom shall have the status of a general unsecured
creditor with respect to the Company’s obligation to make benefit payments pursuant to the Plan.
Any assets of the Company available to pay Plan benefits shall be subject to the claims of the
Company’s general creditors and may be used by the Company in its sole discretion for any purpose.



     11.2. No Right to Continued Employment. Nothing in the Plan shall create or be
construed as a contract between the Company or an Affiliated Company and employees for any matter
including giving any person employed by the Company or an Affiliated Company the right to be
retained in the Company’s or an Affiliated Company’s employ. The Company and each Affiliated
Company expressly reserve the right to dismiss any person at any time, with or without cause,
without liability for the effect that such dismissal might have upon him as a Participant in the
Plan or for any other purpose.



     11.3. Prohibition Against Alienation. 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.



     11.4. 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 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.



     11.5. Payment of Benefit of Incompetent. In the event the Committee finds that a
Participant, former Participant or beneficiary is unable to care for his affairs because of his
minority, illness, accident, or other reason, any benefits payable hereunder may, unless other
claim has been made therefore by a duly appointed guardian, committee or other legal
representative, be paid to a spouse, child, parent, or other blood relative or dependent or to any



12









 







person found by the Committee to have incurred expenses for the support and maintenance of such
Participant, former Participant, or Beneficiary; and any such payments so made shall be a complete
discharge of all liability therefore.



     11.6. Spouse’s Interest. The interest in the benefits hereunder of a Spouse who has
predeceased the Participant shall automatically pass to the Participant and shall not be
transferable by such Spouse in any manner including, but not limited to, such Spouse’s will, nor
shall such interest pass under the laws of intestate succession.



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



     11.8. 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.



     11.9. Legal Fees and Expenses. The Company shall pay all reasonable legal fees and
expenses that a Participant may incur as a result of the Company contesting the validity,
enforceability, or the Participant’s interpretation of, or determinations under this Plan, other
than hardship withdrawals under Section 5 and tax withholding under Section 9.



     11.10. Choice of Law. This Plan shall be governed by and construed in accordance with
the laws of the State of Michigan, other than its choice-of-law rules, to the extent not superseded
by applicable federal statues or regulations.



     11.11. Affiliated Employees. Transfers of employment between Affiliated Companies and
the Company or other Affiliated Companies will be treated as continuous and uninterrupted service
under the Plan.



     11.12. Plan Document. This Plan document provides the final and exclusive statement of
the terms of the Plan. Unless otherwise authorized by the Board or its delegate, no amendment or
modification to this Plan shall be effective until reduced to writing and adopted pursuant to
Section 8. This document legally governs the operation of the Plan, and any claim of right or
entitlement under the Plan shall be determined solely in accordance with its provisions. To the
extent that there are any inconsistencies between the terms of any related materials and the terms
of this document, the terms of this document shall control and govern the operation of the Plan. No
other evidence, whether written or oral, shall be taken into account in determining the right of an
Executive, a Participant, or beneficiary, as applicable, to any benefit of any type provided under
the Plan.



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SECTION 12.

ARBITRATION




     12.1 Arbitration Process. Notwithstanding Section 8 hereof, in the event of any
dispute, claim, or controversy (hereinafter referred to as a “Grievance”) between an Executive (or
beneficiary) 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 Executive 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 12.



          (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 hereof. 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 Executive 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
Executive
or the Company with respect to any Grievance which is arbitrable as herein set forth.




     12.2 Effect of Plan Termination. The arbitration provisions shall, with respect to
any Grievance, survive the termination of this Plan.



SECTION 13.

CHANGE IN CONTROL PROVISIONS




     13. 1. General. In the event of a Change in Control, as defined in Section 13.6,
then, notwithstanding any other provision of the Plan, the provisions of this Section 13 shall be
applicable and shall supersede any conflicting provisions of the Plan.



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     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 equal to each Participant’s hypothetical account balance as of the date of the
Change in Control, 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 cash. The Company and/or an
Affiliated Company 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.



     13.3. Lump Sum Payments. In connection with a Change in Control or consummation of a
transaction constituting a Change in Control, the Chairman of DTE Energy Company shall have the
absolute discretion to direct that a lump sum payment be made to a Participant up to the total
value of such Participant’s Pre-2005 Accounts if such payment will reduce the amount of any
potential excise tax imposed by Code section 4999.



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



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




     13.6. Definition of Change in Control. “Change in Control” means the occurrence of
any one of the following events:



          (a) individuals who, on January 1, 2002, 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 January 1, 2002, 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




15









 




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 Securities Exchange Act of
1934 (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 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




16









 





          (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, DTE Energy Company has caused this Plan to be executed as of this
24th day of November, 2008.



	 	 	 	 	 
	 	DTE Energy Company

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




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