DTE ENERGY COMPANY
PLAN FOR DEFERRING THE PAYMENT OF DIRECTORS’ FEES
(As Amended And Restated Effective As Of January 1,
2005)
The DTE Energy
Company Plan for Deferring the Payment of Directors’ Fees
(the “Plan”) was originally established by DTE Energy
Company (the “Company”) effective as of January 1,
1996. The Plan was previously amended and restated, effective as of
January 1, 1999, to merge The Detroit Edison Company Plan for
Deferring the Payment of Directors’ Fees (the “DECO
Plan”) heretofore maintained by the Detroit Edison Company
(“DECO”) into the Plan as so amended and restated. This
amendment and restatement of the Plan is effective January 1,
2005, unless another 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 exclusively 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
paragraph.
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.
The purpose of
the Plan is to enable each Director (as defined below) to defer all
or a portion of his or her fees for future services as a member of
the Board of Directors or as a member of any Committee
thereof.
Any Director of
the Company who is not a Company employee or an employee of any
Affiliate (a “Director”) shall be eligible to
participate in the Plan. For purposes of the Plan,
“Affiliate” shall mean any entity in which the Company
directly or indirectly beneficially owns more than 50% of the
voting securities.
SECTION III
ELECTION, MODIFICATION, AND TERMINATION
PROCEDURES
Any Director
wishing to participate in the Plan must file with the Company a
written Notice of Election on the form provided by the Company to
defer payment of all or a portion of his or her Director’s
fees payable in cash. An election to participate in the Plan must
be made prior to the beginning of the calendar year for which fees
are payable and must be irrevocable for all fees payable in that
calendar year. In. addition, with respect to any Director who had a
deferred Director’s fee account under the DECO Plan as of
December 31, 1998, effective beginning
- 1 -
January 1,
1999, any Notice of Election filed by such Director under the DECO
Plan shall be deemed to have been made under and shall be subject
to the terms and conditions of this Plan as if it had been made
hereunder. An effective election with respect to Directors’
fees that have been deferred under the terms of this Plan or DECO
Plan and fees that have already been earned may not be modified or
revoked. An effective election with regard to fees that have not
been deferred or earned may be modified by filing a new Notice of
Election or may be terminated by filing a Notice of Termination on
the form provided by the Company. Any new Notice of Election or
Notice of Termination becomes effective as of the first day of the
calendar year beginning after the Notice of Election or Notice of
Termination is filed. A Director who shall have terminated an
effective election may thereafter file a new election to be
effective as of the beginning of a subsequent calendar year.
Code §409A requires deferral election to be irrevocable for
entire calendar year
SECTION IV
ESTABLISHMENT AND ADMINISTRATION OF DEFERRED DIRECTORS’
FEE ACCOUNT
(A) The
amount of any Director’s fees deferred in accordance with an
election, including effective January 1, 1999, the deferred
Director’s fee account balance under the DECO Plan
transferred to this Plan by merger effective January 1, 1999,
shall be credited to a deferred Director’s fee account
maintained by the Company, which account shall be divided into sub
accounts to specifically identify the portion of the account
subject to adjustment under Section IV(C)(2)
(“Subaccount I”) and the portion of the account subject
to adjustment under Section IV(C)(3) (“Subaccount
II”). Such account shall remain a part of the general funds
of the Company and DECO, and nothing contained in this Plan shall
be deemed to create a trust or fund of any kind or create any
fiduciary relationship.
(B) Subaccount I and Subaccount II of each
deferred Director’s fee account is further divided into two
subaccounts:
(1) The
“Pre-2005 Subaccount” is the portion of a deferred
Director’s fee Subaccount I or Subaccount II attributable to
fees deferred under Section III before January 1, 2005,
and adjustments to the deferred Director’s fee Subaccount I
or Subaccount II made under this Section IV attributable to
the fees deferred before January 1, 2005.
(2) The
“Post-2004 Subaccount” is the portion of a deferred
Director’s fee Subaccount I or Subaccount II account
attributable to fees deferred under Section III after
December 31, 2004, and adjustments to the deferred
Director’s fee Subaccount I or Subaccount II made under this
Section IV attributable to the fees deferred after
December 31, 2004.
(C) As of
the last day of each month for each Director participating in this
Plan and until all amounts in a deferred Director’s fee
account are distributed to the Director, the deferred
Director’s fee account for such Director shall be adjusted as
follows:
(1) The
account and applicable Sub accounts thereof shall first be charged
with any distributions made during the month and effective as of
January 1, 1999 the account and
- 2 -
applicable
Subaccounts thereof shall be credited with .any transfer to the
Plan of the deferred Director’s fee account balance from the
DECO Plan effective as of such date.
(2) The
account balance in Subaccount I shall then be credited with
interest for that month. Such interest shall be computed by
multiplying the applicable portion of the account balance in
Subaccount I after the adjustment provided for in Subsection
(1) but before the adjustments provided for in Subsections
(4) and (5) of this Section IV by a fraction, the
numerator of which is the 5-Year United States Treasury Bond rate
as of the last business day of each month, and the denominator of
which is 12.
(3) The
account balance in Subaccount II shall then be adjusted to reflect
the number of hypothetical shares of Company Common Stock allocated
to Subaccount II as of such date. The number of hypothetical shares
of Company Common Stock allocated to Subaccount II as of any date
shall be equal to the number of shares of Company Common Stock that
would be allocated to Subaccount II as of such date if (i) the
deferred Director’s fees to be credited to the
Director’s account for allocation to Subaccount II were
invested in the Company Common Stock at Fair Market Value (as
defined below) on the trading day that is coincident with or next
following the day the amount is to be credited to the account,
(ii) any balance transferred from Subaccount I due to a change
in election under Section V were invested in the Company
Common Stock at Fair Market Value on the trading day that is
coincident with or next following the effective date of such
change, (iii) cash dividends on the shares of Company Common
Stock treated as allocated to Subaccount II were automatically
reinvested in the Company Common Stock at Fair Market Value on the
trading day that is coincident with or next following the
applicable dividend payment date, and (v) any transfers to
Subaccount I due to a change in election under Section V or
any cash distributions from Subaccount II Account were made at Fair
Market Value on the trading day that is coincident with or next
preceding the effective date of such change of election or
distribution of the number of hypothetical
shares
of Company Common Stock needed to make such transfer or
distribution, which hypothetical shares shall be subtracted from
the number of shares treated as allocated to Subaccount II of the
Participant’s Account as of the effective date of the
transfer or distribution. In the event of any stock dividend or
split, recapitalization, reclassification, increase or decrease in
the number of outstanding shares, merger, consolidation or
exchanges in shares or other similar changes in the Company’s
Common Stock, appropriate adjustments shall be made in the
hypothetical shares of Company Common Stock allocated to each
Director’s Subaccount II to reflect any such change. For
purposes of the Plan, “Fair Market Value” means, before
January 1, 2009, the average of the high and low sales prices
of Company Common Stock, or, after December 31, 2008, the
closing sales price of Company Common Stock on the New York Stock
Exchange (or any exchange on which Company Common Stock is listed
if at any time Company Common Stock is not listed on the New York
Stock Exchange) on a specified date.
(4) Next,
the account shall be credited with the amount, if any, of
Director’s fees deferred during that month, which amount
shall be allocated to Subaccount I and Subaccount II in accordance
with the Director’s election or deemed election under
Section V as in effect as of such date.
- 3 -
(5) Finally, the amount of any transfer to
or from Subaccount I or Subaccount II of the account, pursuant to a
change in election or deemed election under Section V, made as
of such date shall be added to or subtracted from, as the case may
be, the applicable Subaccounts.
A separate
record of deferred Director’s fees and adjustments thereto,
identified to the participant’s Pre-2005 Subaccount and the
participant’s Post-2004 Subaccount, shall be maintained by
the Company for each participant in this Plan.
SECTION V
ELECTION OF ACCOUNT EARNINGS ADJUSTMENTS
At the time a
Director elects to participate in the Plan or as of January 1,
1999, if later, the Director shall elect by filing a notice with
the Corporate Secretary of the Company to have Director fees
thereafter deferred under the terms of the Plan allocated, in
specified multiples of 10%, to Subaccount I or Subaccount II of the
deferred Director’s fee account. If a Director who is
participating in the Plan or the DECO Plan as of December 31,
1998 fails to make an election hereunder as of January 1,
1999, he or she will be deemed to have elected to have
Director’s fees deferred on or after January 1, 1999
allocated to Subaccount 1. In addition, if a Director is
participating in the Plan or the DECO Plan as of December 31,
1998, the Director will be deemed to have elected to have his or
her deferred Director’s fee account balances as of
December 31, 1998 allocated to Subaccount I effective as of
January 1, 1999 unless the Director changes such deemed
election as hereinafter provided in this Section V. A
Director’s election or deemed election under this
Section V shall remain in effect until changed as hereinafter
provided in this Section V.
A Director may
change his or her election or deemed election under this
Section V effective as of the last day of any month beginning
on or after January 1,1999 (or effective as of January 1,
1999 if the Director has a deferred Director’s fee account
balance under the Plan or the DECO Plan as of December 31,
1998), by filing with the Corporate Secretary of the Company
written notice of such change at least 14 days (or by such
other date as the Corporate Secretary of the Company shall
prescribe) prior to the effective date of such change. Any change
shall direct that either or both of (a) that the balance
credited to Subaccount I or Subaccount II of the deferred
Director’s fee account as of such date (determined before the
adjustment in Subsection (e) of Article IV) be
transferred, in specified multiples of 10%, to the other Subaccount
or (b) subsequent Director’s fees deferred under the
terms of the Plan be allocated, in specified multiples of 10%, to
Subaccount I
|
