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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-B
For Registration of Securities of Certain Successor
Issuers Pursuant to Section 12(b) or (g)
of the Securities Exchange Act of 1934
DTE ENERGY COMPANY
(Exact name of registrant as specified in its charter)
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Michigan 38-3217752
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(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
2000 2nd Avenue, Detroit, Michigan 48226-1279
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(Address of principal executive offices) (Zip Code)
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Securities to be registered pursuant to Section 12(b) of the Act:
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Title of each class to be so registered: Name of each exchange on
which each class is to be
registered:
Common Stock, without par value New York Stock Exchange
Chicago Stock Exchange
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Securities to be registered pursuant to Section 12(g) of the Act: None
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Item 1. General Information.
DTE Energy Company (the "Registrant") was organized under the laws of
the State of Michigan as a business corporation on January 26, 1995 under the
name "DTE Holdings, Inc." The Registrant's name was changed November 2, 1995.
The Registrant's fiscal year ends December 31 of each year.
Item 2. Transaction of Succession.
The Registrant's predecessor is The Detroit Edison Company ("Detroit
Edison") which had, prior to the transaction described below, common stock, $10
par value (the "Detroit Edison common stock"), registered pursuant to Section
12(b) of the Securities Exchange Act of 1934, as amended.
Pursuant to an Agreement and Plan of Exchange dated December 13, 1995
(the "Agreement") between the Registrant and Detroit Edison, each outstanding
share of Detroit Edison common stock was exchanged for one share of common
stock, without par value, of the Registrant at 12:01 A.M., Detroit, Michigan
time on January 1, 1996, (the "Effective Time," as defined in the Agreement).
Such exchange took place pursuant to the provisions of Section 703a of the
Michigan Business Corporation Act, as amended (the "Business Corporation Act"),
following approval thereof by the Boards of Directors and shareholders of
Detroit Edison and the Registrant. As a result of the Exchange, the Registrant
has issued and outstanding 145,119,875 shares of its common stock which are
owned by the holders of shares of Detroit Edison common stock outstanding
immediately before the Effective Time, and the Registrant is the sole holder of
all the outstanding Detroit Edison common stock. As a result of the foregoing,
the Registrant has become a holding company with Detroit Edison as a
subsidiary.
Item 3. Securities to be Registered.
With respect to the Registrant's common stock registered hereby:
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Number of Shares Presently Authorized by
Amended and Restated Articles of Incorporation . . . . . . . . . . . . . . . . . . . . 400,000,000
Number of Shares Presently Issued . . . . . . . . . . . . . . . . . . . . . . . . . . . 145,119,875
Number of Shares Presently Issued Which Are
Held by or for the Account of the Registrant . . . . . . . . . . . . . . . . . . . . . . . . . None
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Item 4. Description of Registrant's Securities to Be Registered.
General. The authorized capital stock of the Registrant consists of
5,000,000 shares of preferred stock, without par value, issuable in series of
which none is outstanding, and 400,000,000 shares of common stock, without par
value, of which 145,119,875 were outstanding at January 1, 1996. Detroit
Edison, the Registrant's subsidiary, has an authorized capital stock of
(a) 6,747,484 shares of Preferred Stock, $100 par value, issuable in series, of
which 3,351,223 shares were issued and outstanding in five series at January 1,
1996; (b) 30,000,000 shares of Preference Stock, $1 par value, of which no
shares are outstanding; and (c) 400,000,000 shares of Detroit Edison common
stock, of which 145,119,875 shares, all owned by the Registrant, were
outstanding at January 1, 1996.
The following statements, unless the context otherwise indicates, are
brief summaries of the substance or general effect of certain provisions of the
Registrant's Amended and Restated Articles of Incorporation (the "Registrant's
Articles") or the Restated Articles of Incorporation, as amended, of Detroit
Edison and the resolutions establishing series of Detroit Edison Preferred
Stock and Preference Stock (collectively, "Detroit Edison's Articles"), and of
Detroit Edison's Mortgage securing its outstanding Bonds. Such statements make
use of defined terms and are not complete; they are subject to all the
provisions of the Registrant's Articles, Detroit Edison's Articles or Detroit
Edison's Mortgage Indenture, as the case may be.
Dividend Rights. Dividends on common stock of the Registrant will
depend in the foreseeable future primarily upon the earnings, financial
condition and capital requirements of Detroit Edison. The ability of the
Registrant to pay dividends on its common stock may be limited by existing or
future covenants limiting the right of Detroit Edison to pay dividends on or
acquire Detroit Edison common stock.
Whenever dividends on all outstanding shares of Detroit Edison
Preferred and Preference Stock of all series for all past quarter-yearly
dividend periods have been paid in full and the full dividends for the then
current quarter-yearly dividend period shall have been paid or declared and set
apart for payment, and whenever Detroit Edison is obligated to retire shares of
the Preferred Stock or Preference Stock pursuant to a sinking fund, it shall
have redeemed or purchased all shares of the Preferred Stock or Preference
Stock then or previously required to be redeemed or purchased pursuant to all
such sinking funds, and subject to the limitations summarized below, the
Detroit Edison Board of Directors may declare dividends on Detroit Edison
common stock out of any funds of Detroit Edison legally available for that
purpose.
Interest is payable quarterly on Detroit Edison's 8.50% Quarterly
Income Debt Securities ("QUIDS") (Junior Subordinated Deferrable Interest
Debentures, due 2025) provided that, so long as an event of default has not
occurred and is not continuing with respect to QUIDS, Detroit Edison has the
right, upon prior notice by public announcement given in accordance with New
York Exchange rules at any time, to extend the interest payment period at any
time and from time to time on the QUIDS for up to 20 consecutive quarterly
interest payment periods. As a consequence, quarterly interest payments on the
QUIDS would be deferred but would continue to accrue during any deferral
period. In the event that Detroit Edison exercises this right, Detroit Edison
may not declare or pay dividends on, or redeem, purchase or acquire, any of its
capital stock during such deferral period, other than redemptions of any series
of capital stock of Detroit Edison pursuant to the terms of any sinking fund
provisions with respect thereto. In addition, during any deferral period,
Detroit Edison may not make any advance or loan to, or purchase any securities
of, or make
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any other investment in, any affiliate of Detroit Edison, including Registrant
for the purpose of, or to enable the payment of, directly or indirectly,
dividends on any equity securities of Registrant.
Voting Rights. The shares of the Registrant's common stock entitle
the holders thereof to one vote for each share upon all matters upon which
shareholders have the right to vote, subject to special voting rights, if any,
which may vest in the holders of the Registrant's preferred stock. The
Registrant's preferred stock may be issued in series, each of which shall have
such relative voting, distribution, dividend, liquidation and other rights,
preferences and limitations and redemption and/or conversion provisions
(including provisions for the redemption or conversion of shares at the option
of the shareholder or the Registrant or upon the happening of a specified
event) as shall be prescribed by a resolution of the Board of Directors. To
the extent any of Registrant's preferred stock has voting rights, no share of
preferred stock may be entitled to more than one vote per share. If a quorum
consisting of a majority of the shares outstanding and entitled to vote on the
matter is present (either in person or by proxy) at a shareholders' meeting,
action on a matter (other than the election of directors) shall be authorized
by a majority of the votes cast by the holders of shares entitled to vote
thereon, except as described under "Board of Directors" below, and unless a
greater vote is required by law.
Preemptive Rights. Holders of the Registrant's common stock have no
preemptive subscription rights.
Liquidation Rights. In the event of any liquidation or dissolution of
the Registrant, holders of common stock are entitled to receive the net assets
of the Registrant except to the extent of the preferential rights, if any, of
the holders of the Registrant's preferred stock as may be established from time
to time in accordance with the Registrant's Articles.
Board of Directors. The Registrant's Bylaws provide for a Board of
Directors, having such number as shall be determined from time to time by
resolution of the Board of Directors, so long as the total number of directors
is not less than twelve nor more than eighteen, subject to the Board of
Director's authority to change the minimum and maximum number of directors.
The Registrant's Bylaws provide for the classification of the Board of
Directors into groups with directors being elected for three-year terms. Under
the Registrant's Bylaws, the provision providing for the classification of the
Board of Directors may not be amended or repealed without the vote of a
majority of the shares of the Registrant's common stock.
Cumulative Voting. In the election of directors, every holder of
common stock, and every holder of preferred stock entitled to vote for the
election of directors whose preferred stock has been granted the right to
cumulate votes in the election of directors, shall have the right to cumulative
voting.
Amendments to the Registrant's Articles. The Registrant's Articles
may be amended by the affirmative vote of the holders of a majority of the
outstanding shares of the Registrant entitled to vote on such amendment (which
would include the common stock and any series of preferred stock which, by its
terms or applicable law, was so entitled to vote), unless any class or series
of shares is entitled to vote as a class in respect thereof, in which event the
proposed amendment must be approved in addition by the required vote of each
class or series or shares entitled to vote as a class in respect thereof.
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Call of Meetings. The Registrant's Bylaws provide that no special
meeting of shareholders may be called by shareholders unless called by the
holders of at least a majority of all the votes entitled to be cast on each
issue proposed to be considered at the special meeting.
The Registrant's Bylaws provide that Chapter 7B of the Michigan
Business Corporation Act ("Act") does not apply to Registrant. The Act
regulates shareholder rights when an individual's stock ownership reaches at
least 20 percent of a Michigan corporation's outstanding shares. As a result
of the amendment, a shareholder seeking control of the Registrant cannot
require the Registrant's Board of Directors to call a meeting to vote on issues
related to corporate control within 10 days, as stipulated by the Act.
Miscellaneous. The transfer agent for the common stock is Detroit
Edison, 2000 2nd Avenue, Detroit, Michigan 48226-1279.
The Registrant reserves the right to increase, decrease or reclassify
its authorized capital stock or any class or series thereof, and to amend or
repeal any provisions of the Registrant's Articles and Bylaws, in the manner
prescribed by law, subject to the limitations described in the Registrant's
Articles; and all rights conferred on shareholders in the Registrant's Articles
are subject to this reservation.
Item 5. Financial Statements and Exhibits.
(a) Financial Statements. No financial statements of the
Registrant are presented because (i) the Registrant is a newly-formed company
and has no material assets (other than the common stock of Detroit Edison and
certain of its former subsidiaries) or liabilities or operating history, and
(ii) the capital structure and balance sheet of the Registrant immediately
after the succession as described in Item 2 were substantially the same as
those of Detroit Edison, its predecessor.
(b) Exhibits.
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Number Description of Document Page Number
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1 (2) Agreement and Plan of Exchange
2 Prospectus and Proxy Statement dated March 17, 1995 (incorporated by
reference to the Form S-4 Registration Statement File No. 33-57545)
3A(3.1) Amended and Restated Articles of Incorporation of DTE Energy Company
dated December 13, 1995.
3B(3.2) Amended and Restated Bylaws of DTE Energy Company dated December 11, 1995.
3C(4) Restated Articles of Incorporation, as amended, of Detroit Edison
(incorporated by reference to Exhibit 4-117 to the Form 10-Q of
Detroit Edison for the fiscal quarter ended March 31, 1993)
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Number Description of Document Page Number
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3D(4) Certificate containing resolution of the Board of Directors of Detroit
Edison establishing the Cumulative Preferred Stock, 7.75% Series
(incorporated by reference to Exhibit 4-134 of the Form 10-Q of Detroit
Edison for the quarter ended March 31, 1993)
3E(4) Certificate containing resolution of the Board of Directors establishing
the Cumulative Preferred Stock, 7.74% Series (incorporated by reference
to Exhibit 4-140 of the Form 10-Q of Detroit Edison for the quarter ended
March 31, 1993)
3F(4) Collateral Trust Indenture (Notes), dated as of June 30, 1993 between The
Detroit Edison Company and Bankers Trust Company (Exhibit 4-152 to
Registration Statement No. 33-50325)
3G(4) First Supplemental Note Indenture, dated as of June 30, 1993 (Exhibit 4-153
to Registration No. 33-50325)
3H(4) Second Supplemental Note Indenture, dated as of September 15, 1993 (Exhibit
4-159 to the Detroit Edison Company's Form 10-Q for quarter ended September
30, 1993)
3I(4) Third Supplemental Note Indenture, dated as of August 15, 1994 (Exhibit 4-169
to The Detroit Edison Company's Form 10-Q for quarter ended September 30, 1994)
3J(4) Fourth Supplemental Note Indenture, dated as of August 15, 1995 (Exhibit 4-175
to The Detroit Edison Company's Form 10-Q for quarter ended September 30, 1995)
3K(4) Mortgage and Deed of Trust, dated as of October 1, 1924, between The Detroit
Edison Company (File No. 1-2198) and Bankers Trust Company of Trustee
(Exhibit B-1 to Registration No. 2-1630) and indentures supplemental thereto,
dated as of dates indicated below, and filed as exhibits to The Detroit Edison
Company's filing as set forth below:
September 1, 1947 Exhibit B-20 to Registration No. 2-7136
October 1, 1968 Exhibit 2-B-33 to Registration No. 2-30096
November 15, 1971 Exhibit 2-B-38 to Registration No. 2-42160
January 15, 1973 Exhibit 2-B-39 to Registration No. 2-46595
June 1, 1978 Exhibit 2-B-51 to Registration No. 61643
June 30, 1982 Exhibit 4-30 to Registration No. 2-78941
August 15, 1982 Exhibit 4-32 to Registration No. 2-79674
October 15, 1985 Exhibit 4-170 to Form 10-K for December 31, 1994
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Number Description of Document Page Number
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3K(4) November 30, 1987 Exhibit 4-139 to Form 10-K for December 31, 1994
(cont) July 15, 1989 Exhibit 4-171 to Form 10-K for December 31, 1994
December 1, 1989 Exhibit 4-172 to Form 10-K for December 31, 1994
February 15, 1990 Exhibit 4-173 to Form 10-K for December 31, 1994
November 1, 1990 Exhibit 4-110 to Form 10-K for December 31, 1990
April 1, 1991 Exhibit 4-111 to Form 10-Q for March 31, 1991
May 1, 1991 Exhibit 4-112 to Form 10-Q for June 30, 1991
May 15, 1991 Exhibit 4-113 to Form 10-Q for June 30, 1991
September 1, 1991 Exhibit 4-116 to Form 10-Q for September 30, 1991
November 1, 1991 Exhibit 4-119 to Form 10-K for December 31, 1991
January 15, 1992 Exhibit 4-120 to Form 10-K for December 31, 1991
February 29, 1992 Exhibit 4-121 to Form 10-Q for March 31, 1992
April 15, 1992 Exhibit 4-122 to Form 10-Q for June 30, 1992
July 15, 1992 Exhibit 4-123 to Form 10-Q for September 30, 1992
July 31, 1992 Exhibit 4-124 to Form 10-Q for September 30, 1992
November 30, 1992 Exhibit 4-130 to Registration No. 33-56496
January 1, 1993 Exhibit 4-131 to Registration No. 33-56496
March 1, 1993 Exhibit 4-141 to Form 10-Q for March 31, 1993
March 15, 1993 Exhibit 4-142 to Form 10-Q for March 31, 1993
April 1, 1993 Exhibit 4-143 to Form 10-Q for March 31, 1993
April 26, 1993 Exhibit 4-144 to Form 10-Q for March 31, 1993
May 31, 1993 Exhibit 4-148 to Registration No. 33-64296
June 30, 1993 Exhibit 4-149 to Form 10-Q for June 30, 1993
(1993 Series AP)
June 30, 1993 Exhibit 4-150 to Form 10-Q for June 30, 1993
(1993 Series H)
September 15, 1993 Exhibit 4-158 to Form 10-Q for September 30, 1993
March 1, 1994 Exhibit 4-163 to Registration No. 33-53207
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Number Description of Document Page Number
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3K(4) June 15, 1994 Exhibit 4-166 to Form 10-Q for June 30, 1994
(cont) August 15, 1994 Exhibit 4-168 to Form 10-Q for September 30, 1994
December 1, 1994 Exhibit 4-169 to Form 10-K for December 31, 1994
August 1, 1995 Exhibit 4-174 to Form 10-Q for September 30, 1995
3L(*10.1) Form of 1995 Indemnification Agreement between the Registrant and (1)
Terence E. Adderley, (2) Lilliam Bauder, (3) David Bing, (4) Anthony F.
Earley, Jr., (5) Larry G. Garberding, (6) Allan D. Gilmour, (7)
Theodore S. Leipprandt, (8) John E. Lobbia, (9) Patricia S. Longe,
(10) Eugene A. Miller, (11) Dean E. Richardson, (12) Alan E. Schwartz,
(13) William Wegner, (14) Christopher C. Arvani, (15) Susan M. Beale,
(16) Elaine M. Godfrey, (17) Ronald J. Giaier, (18) Ronald W. Gresens,
(19) Thomas A Hughes, (20) Frederic S. Karwacki, (21) Leslie L. Loomans,
(22) Peter A. Marquardt, (23) Christopher C. Nern, and (24) Albert J. Tack.
3L(*10.2) Form of Indemnification Agreement between The Detroit Edison Company
("Detroit Edison") and (1) Frank E. Agosti, (2) Gerard M. Anderson,
(3) Robert J. Buckler, (4) Ronald W. Gresens, (5) Leslie L. Loomans,
(6) S. Martin Taylor, (7) Susan M. Beale, (8) Frederick S. Karwacki,
(9) Douglas R. Gipson, (10) Thomas A. Hughes, (11) Christopher C.
Nern, (12) Elaine M. Godfrey, (13) Christopher C. Arvani, (14) Michael
E. Champley, and (15) Haven E. Cockerham, (16) Ronald J. Giaier,
(17) Peter A. Marquardt, and (18) Albert J. Tack (Exhibit 10-41 to
Detroit Edison's Form 10-Q for quarter ended June 30, 1993).
3L(*10.3) The Detroit Edison Company Shareholder Value Improvement Plan - A, as
amended and restated effective January 1, 1996.
3L(*10.4) Certain arrangements pertaining to the employment of S. Martin Taylor
(Exhibit 10-38 to Detroit Edison's Form 10-K for year ended December 31,
1992).
3L(*10.5) Certain arrangements pertaining to the employment of Anthony F. Earley,
Jr. (Exhibit 10-53 to Detroit Edison's Form 10-Q for quarter ended March
31, 1994).
3L(*10.6) Third Restatement of the Detroit Edison Company Savings Reparation Plan,
effective as of January 1, 1996.
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Number Description of Document Page Number
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3L(*10.7) Certain arrangements pertaining to the employment of Haven E. Cockerham
(Exhibit 10-55 to Detroit Edison's Form 10-Q for quarter ended September
30, 1994).
3L(*10.8) Key Employee Deferred Compensation Plan (January 1990). (Exhibit 10-21
to Detroit Edison's Form 10-K for year ended December 31, 1989).
3L(*10.9) Third Restatement of the Retirement Reparation Plan for Certain Employees
of Detroit Edison, effective as of January 1, 1996.
3L(*10.10) Third Restatement of the Benefit Equalization Plan for Certain Employees
of Detroit Edison, effective as of January 1, 1996.
3L(*10.11) Certain Arrangements Pertaining to the Employment of Larry G. Garberding
(Exhibit 28-52 to Detroit Edison's Form 10-Q for quarter ended June 30, 1990).
3L(*10.12) Form of Indemnification Agreement, between Detroit Edison and (1) John E.
Lobbia, (2) Larry G. Garberding and (3) Anthony F. Earley, Jr. (Exhibit
19-7 to Detroit Edison's Form 10-Q for quarter ended March 31, 1992).
3L(*10.13) Form of Indemnification Agreement between Detroit Edison and (1) Terence E.
Adderley, (2) Lillian Bauder, (3) David Bing, (4) Alan E. Schwartz, (5)
William Wegner, (6) Theodore S. Leipprandt, (7) Patricia S. Longe, (8)
Eugene A. Miller, (9) Dean E. Richardson, and (10) Allan D. Gilmour
(Exhibit 19-8 to Detroit Edison's Form 10-Q for quarter ended March 31, 1992).
3L(*10.14) Supplemental Long Term Disability Plan, dated November 5, 1991 (Exhibit 10-32
to Detroit Edison's Form 10-K for year ended December 31, 1991).
3L(*10.15) Executive Vehicle Program, dated October 1, 1993 (Exhibit 10-47 to Detroit
Edison's Form 10-Q for quarter ended September 30, 1993).
3L(*10.16) Amendment No. 1 to Executive Vehicle Plan, November 1993 (Exhibit 10-58 to
Detroit Edison's Form 10-K for year ended December 31, 1993).
3L(*10.17) Certain arrangements pertaining to the employment of Gerard M. Anderson
(Exhibit 10-40 to Detroit Edison's Form 10-K for year ended December 31,
1993).
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Number Description of Document Page Number
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3L(*10.18) Third Restatement of The Detroit Edison Company Management Supplemental
Plan, effective as of January 1, 1996.
3L(*10.19) Third Restatement of The Detroit Edison Company Plan for Deferring the
Payment of Directors' Fees (January 1, 1996).
3L(*10.20) DTE Energy Company Retirement Plan for NonEmployee Directors
(January 1, 1996).
3L(*10.21) DTE Energy Company Plan for Deferring the Payment of Directors' Fees
(January 1, 1996).
3M(21) Subsidiaries of the Registrant
4(11) Primary and Fully Diluted Earnings Per Share of Common Stock
5(12A) Computation of Ratio of Earnings to Fixed Charges
5(12B) Computation of Ratio of Earnings to Fixed Charges and Preferred
Stock Dividend Requirements
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*Denotes management contract or compensatory plan or arrangement.
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Note: Number in parentheses refers to Exhibit number from Item 601 of Form S-K.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the Registrant has duly caused this application for registration
(or registration statement), or amendment thereto, to be signed on its behalf
by the undersigned, thereunto duly authorized.
DTE ENERGY COMPANY
By: John E. Lobbia
------------------------------------
John E. Lobbia
Chairman and Chief Executive Officer
Date: January 2, 1996
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EXHIBIT 1(2)
CONFORMED COPY
AGREEMENT AND PLAN OF EXCHANGE
THIS AGREEMENT AND PLAN OF EXCHANGE (this "Agreement"), dated
as of December 13, 1995, is between THE DETROIT EDISON COMPANY, a Michigan
corporation (the "Company"), whose shares will be acquired pursuant to the
Exchange described herein, and DTE ENERGY COMPANY (formerly DTE Holdings,
Inc.), a Michigan corporation ("Holding Company"), the acquiring company. The
Company and Holding Company are hereinafter referred to, collectively, as the
"Companies."
W I T N E S S E T H:
WHEREAS, the authorized capital of the Company is
$4,704,748,400, consisting of (a) 400,000,000 shares of common stock, $10 par
value per share ("Company Common Stock"), of which 145,119,875 shares are
issued and outstanding, (b) 6,747,484 shares of preferred stock, $100 par value
("Company Preferred Stock"), of which 3,351,223 shares are issued and
outstanding in five series and (c) 30,000,000 shares of preference stock, $1
par value ("Company Preference Stock"), of which no shares are issued and
outstanding;
WHEREAS, Holding Company is a wholly owned subsidiary of the
Company with authorized capital stock consisting of (a) 400,000,000 shares of
common stock, without par value ("Holding Company Common Stock"), of which
1,000 shares are issued and outstanding and owned of record by the Company and
(b) 5,000,000 shares of preferred stock, without par value ("Holding Company
Preferred Stock"), of which no shares are issued and outstanding;
WHEREAS, the Boards of Directors of the respective Companies
deem it desirable and in the best interests of the Companies and their
shareholders that Holding Company acquire each share of Company Common Stock
issued and outstanding at the Effective Time (as hereinafter defined) and that
each such share of Company Common Stock be exchanged for a share of Holding
Company Common Stock with the result that Holding Company becomes the owner of
all outstanding Company Common Stock and that each holder of Company Common
Stock becomes the owner of an equal number of shares of Holding Company Common
Stock, all on the terms and conditions hereinafter set forth;
WHEREAS, the execution and delivery of this Agreement by the
Company and Holding Company and the Exchange and the related transactions have
been approved, to the extent required, by orders, authorizations or approvals
of the Federal Energy Regulatory Commission under the Federal Power Act and the
Nuclear Regulatory Commission under the Atomic Energy Act;
WHEREAS, the Board of Directors of the Company and Holding
Company have recommended that their respective shareholders approve the
Exchange and this Agreement and this Agreement has been adopted by the
requisite vote of the holders of Company Common Stock and by the requisite vote
of the shareholder of Holding Company pursuant to the Michigan Business
Corporation Act (the "Act").
NOW, THEREFORE, in consideration of the premises, and of the
agreements, covenants, and conditions hereinafter contained, and subject to
satisfaction of the conditions herein contained, the parties hereto agree with
respect to the acquisition and exchange provided for herein (the "Exchange")
that at the Effective Time each share of Company Common Stock issued and
outstanding immediately prior to the Effective Time will be exchanged for one
share of Holding Company Common Stock, and that the terms and conditions of the
Exchange and the method of carrying the same into effect are as follows:
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ARTICLE I
Subject to the satisfaction of the conditions and obligations
of the parties hereto, the Exchange will be effective at 12:01 A.M., Detroit,
Eastern Standard Time, on January 1, 1996, and upon the filing with the
Corporation and Securities Bureau of the Michigan Department of Commerce (the
"Michigan Bureau") of a Certificate of Share Exchange ("Certificate") with
respect to the Exchange or at such later time as may be stated in the
Certificate (the time at which the Exchange becomes effective being referred to
herein as the "Effective Time").
ARTICLE II
At the Effective Time:
(1) Each share of Company Common Stock issued and outstanding
immediately prior to the Effective Time shall be acquired by Holding
Company and shall be exchanged for one share of Holding Company Common
Stock, which shall thereupon be fully paid and nonassessable;
(2) Holding Company shall become the owner and holder of each issued
and outstanding share of Company Common Stock so exchanged;
(3) Each share of Holding Company Common Stock issued and
outstanding immediately prior to the Effective Time shall be cancelled
and shall thereupon constitute an authorized and unissued share of
Holding Company Common Stock; and
(4) The former owners of Company Common Stock shall be entitled only
to receive shares of Holding Company Common Stock as provided herein.
Shares of Company Preferred Stock and shares of Company
Preference Stock shall not be exchanged or otherwise affected in connection
with the Exchange. Each share of Company Preferred Stock issued and
outstanding immediately prior to the Effective Time shall continue to be issued
and outstanding following the Exchange and shall continue to be a share of
Company Preferred Stock of the applicable series designation. Pursuant to the
Company's Restated Articles of Incorporation it has redeemed its Convertible
Cumulative Preferred Stock, 5 1/2% Series.
ARTICLE III
The consummation of the Exchange is subject to the following
conditions precedent:
(1) The satisfaction of the respective obligations of the parties
hereto in accordance with the terms and conditions herein contained;
(2) The execution and filing of an appropriate Certificate with the
Michigan Bureau pursuant to the Act;
(3) The approval for listing upon official notice of issuance, by
the New York Stock Exchange and the Chicago Stock Exchange, of Holding
Company Common Stock to be issued in accordance with this Agreement;
(4) The receipt and continued effectiveness of such orders,
authorizations, approvals or waivers from all jurisdictive regulatory
bodies, boards or agencies, in addition to the orders or approvals
referred to in the fourth Whereas clause hereof, which are required
in connection with the Exchange and related transactions; and
(5) receipt of either an opinion of counsel or a ruling from the
Internal Revenue Service, in either case acceptable to the Board of
Directors of the Company, as to the federal income tax consequences of
the Exchange.
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ARTICLE IV
This Agreement may be amended, modified or supplemented, or
compliance with any provision or condition hereof may be waived, at any time,
by the mutual consent of the Boards of Directors of the Company and of Holding
Company at any time prior to the time the Certificate is filed with the
Michigan Bureau; provided, however, that no such amendment, modification,
supplement or waiver shall be made or effected if such amendment, modification,
supplement or waiver would, in the sole judgment of the Board of Directors of
the Company, materially and adversely affect the shareholders of the Company.
This Agreement may be terminated and the Exchange and related
transactions abandoned at any time prior to the time the Certificate is filed
with the Michigan Bureau, if the Board of Directors of the Company determines,
in its sole judgment, that consummation of the Exchange would for any reason be
inadvisable or not in the best interests of the Company or its shareholders.
ARTICLE V
This Agreement has been submitted to the holders of Company
Common Stock and to the sole holder of Holding Company Common Stock for
approval as provided by the Act. The affirmative vote of the holders of a
majority of the outstanding Company Common Stock was received constituting the
adoption of this Agreement. The affirmative vote of the holder of all of the
outstanding shares of Holding Company Common Stock was received constituting
the adoption of this Agreement.
ARTICLE VI
Following the Effective Time, each holder of an outstanding
certificate or certificates theretofore representing shares of Company Common
Stock may, but shall not be required to, surrender the same to Holding Company
for cancellation and reissuance of a new certificate or certificates in such
holder's name or for cancellation and transfer, and each such holder or
transferee will be entitled to receive a certificate or certificates
representing the same number of shares of Holding Company Common Stock as the
shares of Company Common Stock previously represented by the certificate or
certificates surrendered. Until so surrendered or presented for transfer, each
outstanding certificate which, immediately prior to the Effective Time,
represents Company Common Stock shall be deemed and treated for all corporate
purposes to represent the ownership of the same number of shares of Holding
Company Common Stock as though such surrender or transfer and exchange had
taken place. The holders of Company Common Stock at the Effective Time shall
have no right to have their shares of Company Common Stock transferred on the
stock transfer books of the Company, and such stock transfer books shall be
deemed to be closed for this purpose at the Effective Time.
ARTICLE VII
Prior to or as of the Effective Time, each director of the
Company who is not then also a director of Holding Company shall become a
director of Holding Company. Each director of the Company as of the Effective
Time shall also remain a director of the Company.
ARTICLE VIII
At the Effective Time, Holding Company shall adopt a dividend
reinvestment plan ("Holding Company DRIP") substantially similar to the
Company's Dividend Reinvestment Plan ("Company DRIP") in effect immediately
prior to the Effective Time and the Company DRIP shall be discontinued. At the
Effective Time, all shares of Company Common Stock held under the Company DRIP
(including fractional and uncertificated shares) shall be converted to shares
(including fractional and uncertificated shares) of Holding Company Common
Stock and shall be held pursuant to the Holding Company DRIP. At the Effective
Time, Holding Company shall adopt, become subject to and/or agree to issue
Holding Company Common Stock in connection with each Savings and Investment
Plan of the Company and the Company's Long-Term Incentive Plan.
<PAGE> 4
IN WITNESS WHEREOF, each of the Company and Holding Company,
pursuant to authorization and approval given by its Board of Directors, has
caused this Agreement to be executed by its Chairman and Chief Executive
Officer and its corporate seal to be affixed hereto and attested by this
Assistant Corporate Secretary as of the date first above written.
THE DETROIT EDISON COMPANY
By: /s/
------------------------------------
John E. Lobbia
Chairman and Chief Executive Officer
ATTEST:
/s/
- -----------------------------------
Elaine M. Godfrey
Assistant Corporate Secretary
DTE ENERGY COMPANY
By: /s/
------------------------------------
John E. Lobbia
Chairman and Chief Executive Officer
ATTEST:
/s/
- -----------------------------------
Elaine M. Godfrey
Assistant Corporate Secretary
<PAGE> 1
EXHIBIT 3A(3.1)
CONFORMED COPY
AMENDED AND RESTATED ARTICLES OF INCORPORATION
Pursuant to the provisions of Act 284, Public Acts of 1972, the undersigned
corporation executes the following Articles:
ARTICLE I
The name of the corporation is DTE ENERGY COMPANY.
ARTICLE II
The purposes for which the corporation (the "Company") is formed are
to engage in any activity within the purposes for which corporations may be
formed under the Michigan Business Corporation Act (the "Act").
ARTICLE III
The location and post office address of the principal office of the
Company at the time of filing these Articles is 2000 2nd Avenue, Detroit, Wayne
County, Michigan 48226-1279 and it is hereby designated as the location and
post office address of the registered office of the Company in Michigan under
these Articles.
ARTICLE IV
The name of the Company's resident agent in Michigan at the time of
filing these Articles is Susan M. Beale and she is hereby designated as the
resident agent of the Company in Michigan under these Articles.
ARTICLE V
A. The aggregate number of shares which the Company is authorized
to issue is four hundred and five million (405,000,000) shares, divided into
and consisting of (a) four hundred million (400,000,000) shares of common
stock, without par value, and (b) five million (5,000,000) shares of preferred
stock, without par value, issuable in one or more series as hereinafter
provided.
B. The authorized preferred stock may be issued, in one or more
series, from time to time as the Board of Directors may determine. Each series
of preferred stock shall bear a distinctive designation, shall be issued in
such number of
<PAGE> 2
shares and shall have such relative voting, distribution, dividend, liquidation
and other rights, preferences and limitations and redemption and/or conversion
provisions (including provisions for the redemption or conversion of shares at
the option of the shareholder or the Company or upon the happening of a
specified event) as shall be prescribed, and the Board of Directors is
expressly authorized to fix such terms, by a resolution of the Board of
Directors. Such resolutions, when filed, shall constitute amendments to these
Articles of Incorporation to the extent provided by the Act.
C. Each holder of common stock of the Company shall be entitled
to one vote for each share of such stock standing in such shareholder's name on
the books of the Company and each holder of preferred stock of the Company
shall be entitled to such voting rights as shall be established by the Board of
Directors pursuant to paragraph B of this Article V; provided that no share of
preferred stock may be entitled to more than one vote per share.
D. In all elections of directors every holder of common stock,
and every holder of preferred stock entitled to vote for the election of
directors whose preferred stock has been granted the right to cumulate votes in
the election of directors, shall have the right to vote the number of shares of
stock owned by such shareholder for as many persons as there are directors to
be elected and for whose election such shareholder has the right to vote, or to
cumulate all the votes such shareholder could cast for election of directors
and cast them all for one candidate or distribute them among candidates for
whom such shareholder is entitled to vote, as such shareholder shall think fit.
E. No shareholder shall have any preemptive or preferential right
to subscribe for or purchase any part of any new or additional issue of stock
of any class whatsoever, or of securities convertible into or exchangeable for
any stock of any class whatsoever, or of securities carrying options, warrants
or other rights to purchase or otherwise acquire stock of any class whatsoever,
whether now or hereafter authorized and whether issued for cash or other
consideration or by way of dividend or otherwise, or to have any other
preemptive or preferential right as now or hereafter defined by the laws of the
State of Michigan.
ARTICLE VI
To the full extent permitted by the Act or any other applicable laws
presently or hereafter in effect no director of the Company shall be personally
liable to the Company or its shareholders for or with respect to any acts or
omissions in the performance of his or her duties as a director of the
<PAGE> 3
3
Company. Any repeal or modification of this Article VI shall not adversely
affect any right or protection of a director of the Company existing hereunder
immediately prior to such repeal or modification.
ARTICLE VII
Each person who is or was or had agreed to become a director or
officer of the Company, or each such person who is or was serving or who had
agreed to serve at the request of the Board of Directors as an employee or
agent of the Company or as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise (including
the heirs, executors, administrators or estate of such person), shall be
indemnified by the Company to the full extent permitted by the Act or any other
applicable laws as presently or hereafter in effect. Without limiting the
generality or the effect of the foregoing, the Company may enter into one or
more agreements with any person which provides for indemnification greater or
different than that provided in this Article. Any repeal or modification of
this Article VII shall not adversely affect any right or protection existing
hereunder immediately prior to such repeal or modification.
ARTICLE VIII
The term of the corporate existence of the Company is perpetual.
ARTICLE IX
The name and address of the sole incorporator is as follows:
Susan M. Beale
2000 2nd Avenue
Detroit, Michigan 48226-1279
Dated this 13th day of December, 1995.
/s/
------------------------
John E. Lobbia
Chairman of the Board
<PAGE> 1
EXHIBIT 3B(3.2)
BYLAWS
of
DTE ENERGY COMPANY
_____________________
As amended and restated through December 11, 1995
_____________________
<PAGE> 2
BYLAWS
of
DTE ENERGY COMPANY
_____________________
INDEX
<TABLE>
<CAPTION>
Page
----
<S> <C>
ARTICLE I
Shareholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1. Annual Meeting . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 2. Special Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 3. Notice of Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
SECTION 4. Quorum. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 5. Voting and Inspectors. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 6. Record of Shareholders. . . . . . . . . . . . . . . . . . . . . . . . . . . 2
SECTION 7. List of Shareholders. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE II
Board of Directors and Committees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 1. Number, Time of Holding Office, and Limitation on
Age. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
SECTION 2. Vacancies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 3. Meetings of the Board. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 4. Quorum. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SECTION 5. Annual Meeting of Directors. . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 6. Executive Committee. . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 7. Committees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 8. Participation in Meetings . . . . . . . . . . . . . . . . . . . . . . . . . 5
SECTION 9. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
</TABLE>
<PAGE> 3
<TABLE>
<S> <C>
ARTICLE III
Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 1. Officers and Agents . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 2. Term of Office . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 3. Chairman of the Board . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
SECTION 4. President . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 5. Other Officers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 6. Compensation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 7. Voting of Shares and Securities
of Other Corporations . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
ARTICLE IV
Capital Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 1. Certificates of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . 7
SECTION 2. Transfer of Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
SECTION 3. Lost or Destroyed Stock Certificates . . . . . . . . . . . . . . . . . . . 8
ARTICLE V
Checks, Notes, Bonds, Debentures, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE VI
Corporate Seal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE VII
Control Share Acquisitions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
ARTICLE VIII
Amendment of Bylaws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
</TABLE>
ii
<PAGE> 4
BYLAWS
OF
DTE ENERGY COMPANY
AS AMENDED AND RESTATED THROUGH DECEMBER 11, 1995
ARTICLE I
SHAREHOLDERS
SECTION 1. ANNUAL MEETING. The annual meeting of the
shareholders of the Company shall be held on the fourth Monday of April in each
year (or if said day be a legal holiday, then on the next succeeding day not a
legal holiday), at such time and at such place as may be fixed by the Board of
Directors and stated in the notice of meeting, for the purpose of electing
directors and transacting such other business as may properly be brought before
the meeting.
SECTION 2. SPECIAL MEETINGS. Special meetings of the
shareholders may be held upon call of the Board of Directors or the Chairman of
the Board or the President or the holders of record of a majority of the
outstanding shares of stock of the Company entitled to vote at such meeting, at
such time as may be fixed by the Board of Directors or the Chairman of the
Board or the President or such shareholders and stated in the notice of
meeting. All such meetings shall be held at the office of the Company in the
City of Detroit unless some other place is specified in the notice.
SECTION 3. NOTICE OF MEETINGS. Written notice of the date,
time, place, and purpose or purposes of every meeting of the shareholders,
signed by the Secretary or an Assistant Secretary, shall be given either
personally or by mail, within the time prescribed by law, to each shareholder
of record entitled to vote at such meeting and to any shareholder who, by
reason of any action proposed to be taken at such meeting, might be entitled to
receive payment for such stock if such action were taken. If mailed, such
notice is given when deposited in the United States mail, with postage prepaid,
directed to the shareholder at the address as it appears on the record of
shareholders, or, if the shareholders shall have filed with the Secretary of
the Company a written request that notices intended for such shareholder be
mailed to some other address, then directed to the address designated in such
request. Further notice shall be given by mail, publication, or otherwise, if
and as required by law.
<PAGE> 5
Notice of meeting need not be given to any shareholder who submits a
signed waiver of notice, in person or by proxy, whether before or after the
meeting. The attendance of any shareholder at the meeting, in person or by
proxy, without protesting at the beginning of the meeting the lack of notice of
such meeting, shall constitute a waiver of notice by such shareholder.
Notice of a special meeting shall also indicate that it is being
issued by or at the direction of the person or persons calling the meeting.
SECTION 4. QUORUM. At every meeting of the shareholders, the
holders of record of a majority of the outstanding shares of stock of the
Company entitled to vote at such meeting, whether present in person or
represented by proxy, shall constitute a quorum. If at any meeting there shall
be no quorum, the holders of a majority of the outstanding shares of stock so
present or represented may adjourn the meeting from time to time, without
notice (unless otherwise required by statute) other than announcement at the
meeting, until a quorum shall have been obtained, when any business may be
transacted which might have been transacted at the meeting as first convened
had there been a quorum. When a quorum is once present to organize a meeting,
it is not broken by the subsequent withdrawal of any shareholder.
SECTION 5. VOTING AND INSPECTORS. Except as provided in the
Articles of Incorporation, each holder of record of outstanding shares of stock
of the Company entitled to vote at a meeting of shareholders shall be entitled
to one vote for each share of stock standing in the shareholder's name on the
record of shareholders, and may so vote either in person or by proxy appointed
by instrument in writing executed by such holder or by the shareholder's duly
authorized attorney-in-fact. No proxy shall be valid after the expiration of
three years from the date of its execution unless the shareholder executing it
shall have specified the length of time it is to continue in force which shall
be for some limited period. The authority of the holder of a proxy to act
shall not be revoked by the incompetence or death of the shareholder who
executed the proxy unless, before the authority is exercised, written notice of
an adjudication of such incompetence or of such death is received by the
Secretary or an Assistant Secretary.
In advance of any meeting of shareholders, the Board of Directors may
appoint one or more inspectors for the meeting. If inspectors are not so
appointed, the chairman of the meeting shall appoint such inspectors. Before
entering upon the discharge of their duties, the inspectors shall take and
subscribe an oath faithfully to execute the duties of inspector at such meeting
with strict impartiality and according to the best of their ability, and shall
take charge of the polls and after balloting shall make a certificate of the
result of the vote taken. No officer or director of the Company or candidate
for office of director shall be appointed as an inspector. At all elections of
directors the voting shall be by ballot and a plurality of the votes cast shall
elect.
2
<PAGE> 6
SECTION 6. RECORD OF SHAREHOLDERS. For the purpose of
determining the shareholders entitled to notice of or to vote at any meeting of
shareholders or any adjournment thereof, or to express consent to or dissent
from any proposal without a meeting, or for the purpose of determining
shareholders entitled to receive payment of any dividend or the allotment of
any rights, or for the purpose of any other action, the Board of Directors may
fix, in advance, a date as the record date for any such determination of
shareholders. The record date shall not precede the date upon which is it
fixed and shall not be less than ten days nor more than the maximum number of
days permitted by law before the date of the meeting, or taking of any other
action.
SECTION 7. LIST OF SHAREHOLDERS. A list of shareholders of
record, arranged alphabetically within each class and series of stock, as of
the record date, certified by the Secretary or any Assistant Secretary or by a
transfer agent, shall be produced at any meeting of shareholders and may be
inspected by any shareholder at any time during the meeting. If the right to
vote at any meeting is challenged, the inspectors, or the chairman presiding at
the meeting, shall require such list of shareholders to be produced as evidence
of the right of the persons challenged to vote at such meeting, and all persons
who appear on such list to be shareholders entitled to vote thereat may vote at
such meeting.
ARTICLE II
BOARD OF DIRECTORS AND COMMITTEES
SECTION 1. NUMBER, TIME OF HOLDING OFFICE AND LIMITATION ON AGE.
The business and affairs of the Company shall be managed by or under the
direction of a Board of Directors. The number of directors constituting the
entire Board shall be determined from time to time by resolution of the Board
so long as the total number of directors is not less than twelve nor more than
eighteen; provided, however, that the minimum and maximum number of directors
may be increased or decreased from time to time by vote of a majority of the
entire Board; and, further provided that no change in the number of directors
shall serve to shorten the term of office of any incumbent director. The
directors shall be divided into three classes, as nearly equal in number as
possible, and the term of the office of the first class shall expire at the
1996 annual meeting of shareholders, the term of office of the second class
shall expire at the 1997 annual meeting of shareholders and the term of office
of the third class shall expire at the 1998 annual meeting of shareholders, or,
in each case, until their successors shall be duly elected and qualified. At
each annual meeting commencing in 1996, a number of directors equal to the
number of the class whose term expires at the time of the meeting shall be
elected to hold office until the third succeeding annual meeting of
shareholders. If at any time the holders of any series of the Company's
Preferred Stock are entitled to elect directors pursuant to the Articles of
Incorporation of the Company, then the provisions of such series of Preferred
Stock with respect to their rights shall apply and
3
<PAGE> 7
such directors shall be elected in a manner and for terms expiring consistent
with the Articles of Incorporation.
Except as hereinafter provided, each director shall be a holder of
common stock of the Company at the time of initial election to the Board or
shall become a holder within thirty days after such election (to the extent of
at least one share, owned beneficially). Any director who thereafter ceases to
be such a holder, shall thereupon cease to be a director. The Board shall have
the authority to waive the requirement to hold shares in individual situations
upon presentation of evidence that a nominee or director is unable to hold
shares for legal or religious reasons.
No person who shall have served as an employee of the Company shall be
elected a director after retiring from employment with the Company; provided,
however, that if such person was the Chief Executive Officer of the Company at
the time of such retirement, such person shall be eligible for election as a
director until attaining age seventy. No other person shall be elected a
director after attaining age seventy.
SECTION 2. VACANCIES. Whenever any vacancy shall occur in the
Board of Directors by death, resignation, or any other cause, it shall be
filled without undue delay by a majority vote of the remaining members of the
Board of Directors (even if constituting less than a quorum), and the person
who is to fill any such vacancy shall hold office for the unexpired term of the
director to whom such person succeeds, or for the term fixed by the Board of
Directors acting in compliance with Section l of this Article II in case of a
vacancy created by an increase in the number of directors, and until a
successor shall be elected and shall have qualified; provided, however, that no
vacancy need be filled if, after such vacancy shall occur, the number of
directors remaining on the Board shall be not less than a majority of the
entire Board including any vacancies. During the existence of any vacancy or
vacancies, the surviving or remaining directors shall possess and may exercise
all the powers of the full Board of Directors, when action by a larger number
is not required by law.
SECTION 3. MEETINGS OF THE BOARD. Regular meetings of the Board
of Directors shall be held at such times and at such places as may from time to
time be fixed by the Board of Directors.
Special meetings of the Board of Directors may be called by the
Chairman of the Board, the President, or, in the event of the incapacity of the
Chairman of the Board and the President, the Executive Committee by giving
reasonable notice of the time and place of such meetings or by obtaining
written waivers of notice, before or after the meeting, from each absent
director. All such meetings shall be held at the office of the Company in the
City of Detroit unless some other place is specified in the notice.
A notice, or waiver of notice, need not specify the purpose of the
meeting.
4
<PAGE> 8
SECTION 4. QUORUM. A majority of the directors in office at the
time of a meeting of the Board, shall constitute a quorum for the transaction
of business. If at any meeting of the Board of Directors there shall be less
than a quorum present, a majority of the directors present may adjourn the
meeting without notice other than announcement at the meeting, until a quorum
shall have been obtained, when any business may be transacted which might have
been transacted a the meeting as first convened had there been a quorum. The
acts of a majority of the directors present at any meeting at which there is a
quorum shall be the acts of the Board, unless otherwise provided by law, by the
Articles of Incorporation or by the Bylaws.
SECTION 5. ANNUAL MEETING OF DIRECTORS. A meeting of the Board
of Directors, known as the directors' annual meeting, shall be held without
notice each year after the adjournment of the annual shareholders' meeting and
on the same day. At such meeting the officers of the Company for the ensuing
year shall be elected. If a quorum of the directors is not present on the day
appointed for the directors' annual meeting, the meeting shall be adjourned to
some convenient day.
SECTION 6. EXECUTIVE COMMITTEE. The Board of Directors may, by
resolution or resolutions passed by a majority of the entire Board, designate
an Executive Committee to consist of the Chief Executive Officer and two or
more of the other directors, and alternates, and shall designate the Chairman
thereof. The Executive Committee shall have and may exercise, when the Board
is not in session, all of the powers of the Board in the management of the
business and affairs of the Company, and shall have power to authorize the seal
of the Company to be affixed to all papers which may require it. The Executive
Committee shall not have power to (a) amend these Bylaws, (b) change the number
of directors constituting the entire Board or fill vacancies in the Board, (c)
declare dividends, (d) establish, change the membership of, or fill vacancies
in, any committee, (e) fix the compensation of the directors or committee
members, (f) submit matters for action by shareholders, or (g) amend or repeal
a resolution of the Board which by its terms may not be changed by the
Executive Committee. The Board shall have the power at any time to fill
vacancies in, to change the membership of, or to dissolve, the Executive
Committee. The Executive Committee may make rules for the conduct of its
business and may appoint such subcommittees and assistants as it shall from
time to time deem necessary. A majority of the members of the Executive
Committee shall constitute a quorum. All action taken by the Executive
Committee shall be reported to the Board at its next meeting succeeding such
action. The Corporate Secretary or an Assistant Corporate Secretary shall
attend and act as the secretary of all meetings of the Committee and keep the
minutes thereof.
Meetings of the Executive Committee may be called by the Chairman of
the Board, or, the President, or, in the event of the incapacity of the
Chairman of the Board and the President, by two or more members of the
Executive Committee by giving reasonable notice of the time and place of such
meetings. All such meetings shall be
5
<PAGE> 9
held at the office of the Company in the City of Detroit unless some other
place is specified in the notice.
SECTION 7. COMMITTEES. The Board of Directors may, by
resolution, create a committee or committees of one or more directors, and
alternates, to consider and report upon or to carry out such matters (not
excepted by Article II, Section 6) as may be entrusted to them by the Board of
Directors, and shall designate the Chairman of each such committee.
SECTION 8. PARTICIPATION IN MEETINGS. One or more members of
the Board of Directors or any committee may participate in any meeting of such
Board or such committee by means of a conference telephone or similar
communications equipment which enables all persons participating in such a
meeting to hear each other at the same time. Participation in the manner so
described shall constitute presence in person at such meetings.
SECTION 9. COMPENSATION. Each director of the Company who is
not a salaried officer or employee of the Company may receive reasonable
compensation for services as a director, including a reasonable fee for
attendance at meetings of the Board and committees thereof, and attendance at
the Company's request at other meetings or similar activities related to the
Company.
ARTICLE III
OFFICERS
SECTION 1. OFFICERS AND AGENTS. The officers of the Company to
be elected by the Board of Directors, as soon as practicable after the election
of directors each year, shall be Chairman of the Board, the President, a
Secretary and a Treasurer. The Board of Directors may also from time to time
elect one or more Vice Presidents, a Controller, a General Auditor, a General
Counsel, and such other officers and agents as it may deem proper. The
Chairman of the Board and the President shall be chosen from among the
directors. The persons holding the offices of Chairman of the Board or
President may not also hold the office of General Auditor. The Board of
Directors may, in its discretion, leave vacant any office other than that of
Chairman of the Board, President, Secretary, or Treasurer.
SECTION 2. TERM OF OFFICE. The term of office of all officers
shall be until the next directors' annual meeting or until their respective
successors are chosen and qualified. Any officer or agent elected by the Board
of Directors may be removed by the Board at any time, with or without cause.
6
<PAGE> 10
SECTION 3. CHAIRMAN OF THE BOARD. The Chairman of the Board
shall be the Chief Executive Officer of the Company and, shall preside at all
meetings of the Board of Directors and shareholders, at which the Chairman is
present, and shall make the annual report to the shareholders. The Chairman
shall have general charge of the business and affairs of the Company subject to
the control of the Board of Directors, may create in the name of the Company
any authorized corporate obligation or other instrument and shall perform such
other functions as may be prescribed by the Board from time to time.
The Chairman of the Board shall manage or supervise the conduct of the
corporate finances and relations of the Company with its shareholders, with the
public, and with regulatory authorities, and in addition to the President, may
exercise all powers elsewhere in the Bylaws conferred upon the President. The
Chairman may delegate from time to time to the President or to other officers,
employees or positions of the Company, such powers as the Chairman may specify
in writing, with such terms and conditions, if any, as the Chairman may set
forth. A copy of each such delegation and of any revocation or change shall be
filed with the Secretary.
SECTION 4. PRESIDENT. The President shall be the chief
operating officer of the Company, subject to the control of the Board of
Directors and the Chairman of the Board, shall have power to authorize the
employment of such subordinate employees as may, in the President's judgment,
be advisable for the operations of the Company, may execute in the name of the
Company any authorized corporate obligation or other instrument, and shall
perform all other acts incident to the President's office or prescribed by the
Board of Directors or the Chairman of the Board, or authorized or required by
law. During the absence or disability of the Chairman of the Board, the
President shall assume the duties and authority of the Chairman of the Board
and shall be the Chief Executive Officer of the Company.
SECTION 5. OTHER OFFICERS. The other officers, agents, and
employees of the Company shall each have such powers and perform such duties in
the management of the property and affairs of the Company, subject to the
control of the Board of Directors, as generally pertain to their respective
offices, as well as such powers and duties as from time to time may be
prescribed by the Board of Directors, by the Chairman of the Board, or by the
President.
SECTION 6. COMPENSATION. The Board of Directors shall determine
the compensation to be paid to the Chairman of the Board, the President, and
each Vice President above the level of Assistant Vice President.
SECTION 7. VOTING OF SHARES AND SECURITIES OF OTHER
CORPORATIONS. Unless the Board of Directors otherwise directs, the Company's
Chairman of the Board and
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President shall each be entitled to vote or designate a proxy to vote all
shares and other securities which the Company owns in any other corporation or
entity.
ARTICLE IV
CAPITAL STOCK
SECTION 1. CERTIFICATES OF SHARES. The interest of each
shareholder shall be evidenced by a certificate or certificates for shares of
stock of the Company in such form as the Board of Directors may from time to
time prescribe. The certificates of stock shall be signed by the Chairman of
the Board, the President or a Vice President and by the Treasurer, an Assistant
Treasurer, the Corporate Secretary, or an Assistant Corporate Secretary of the
Company, and shall be countersigned by a transfer agent for the stock and
registered by a registrar for such stock. The signatures of the officers and
the transfer agent and the registrar upon such certificates may be facsimiles,
engraved, or printed, subject to the provisions of applicable law. In case any
officer, transfer agent, or registrar shall cease to serve in that capacity
after their facsimile signature has been placed on a certificate, the
certificates may be issued with the same effect as if the officer, transfer
agent, or registrar were still in office.
SECTION 2. TRANSFER OF SHARES. Shares in the capital stock of
the Company shall be transferred on the books of the Company upon surrender and
cancellation of certificates for a like number of shares, with duly executed
power to transfer endorsed on or attached to the certificate.
SECTION 3. LOST OR DESTROYED STOCK CERTIFICATES. No certificate
for shares of stock of the Company shall be issued in place of any certificate
alleged to have been lost, stolen or destroyed, except upon production of such
evidence of the loss, theft or destruction, and upon indemnification of the
Company and its agents to such extent and in such manner as the Board of
Directors may from time to time prescribe.
ARTICLE V
CHECKS, NOTES, BONDS, DEBENTURES, ETC.
All checks and drafts on the Company's bank accounts, all bills of
exchange and promissory notes, and all acceptances, obligations, and other
instruments for the payment of money, shall be signed by such officer or
officers or agent or agents, either manually or by facsimile signature or
signatures, as shall be thereunto authorized from time to time by the Board of
Directors either generally or in specific instances; provided that bonds,
debentures, and other evidences of indebtedness of the Company bearing
facsimile signatures of officers of the Company shall be issued only when
authenticated by a
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manual signature on behalf of a trustee or an authenticating agent appointed by
the Board of Directors. In case any such officer of the Company shall cease
to be such after such officer's facsimile signature has been placed thereon,
such bonds, debentures or other evidences of indebtedness may be issued with
the same effect as if such person were still in office.
ARTICLE VI
CORPORATE SEAL
The Board of Directors shall provide a suitable seal, containing the
name of the Company.
ARTICLE VII
CONTROL SHARE ACQUISITIONS
The Stacey, Bennett, and Randall Shareholder Equity Act (Chapter 7B of
the Michigan Business Corporation Act) shall not apply to any control share
acquisitions (as defined in such Act) of shares of the Company.
This Article VII of the Bylaws may not be amended, altered, or
repealed with respect to any control share acquisition of shares of the Company
effected pursuant to a tender offer or other transaction commenced prior to the
date of such amendment, alteration, or repeal.
ARTICLE VIII
AMENDMENT OF BYLAWS
Those provisions of these Bylaws providing for a classified Board of
Directors (currently the third, fourth and fifth sentences of the first
paragraph of Section 1 of Article II) and the provisions of this sentence may
be amended or repealed only by the affirmative vote of the holders of a
majority of shares of Common Stock of the Company. Except as provided in the
immediately preceding sentence, Bylaws of the Company may be amended, repealed
or adopted by vote of the holders of a majority of shares at the time entitled
to vote in the election of any directors or by vote of a majority of the
directors in office.
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EXHIBIT 3L(*10-1)
INDEMNIFICATION AGREEMENT
This Indemnification Agreement ("Agreement") is made as of the
day of _________, 1995, by and between DTE Energy Company, a Michigan
corporation ("DTE Energy"), and _________________________________, a [director,
officer, or director and officer] of DTE Energy (the "Indemnitee").
RECITALS
A. The Indemnitee is presently serving as a director of
DTE Energy and DTE Energy desires the Indemnitee to continue in such capacity.
The Indemnitee is willing, subject to certain conditions, including without
limitation the execution and performance of this Agreement by DTE Energy, to
continue in that capacity.
B. In addition to the indemnification to which the
Indemnitee is entitled under the Articles of Incorporation (the "Articles") or
By-Laws of DTE Energy in effect from time to time, DTE Energy has obtained at
its sole expense insurance protecting its officers and directors, including the
Indemnitee, against certain losses arising out of actual or threatened actions,
suits or proceedings to which such persons may be made or threatened to be made
parties. However, as a result of circumstances having no relation to, and
beyond the control of, DTE Energy and the Indemnitee, there can be no assurance
of the continuation, renewal or scope of that insurance.
Accordingly, and in order to induce the Indemnitee to continue
to serve in the Indemnitee's present capacity, DTE Energy and Indemnitee agree
as follows:
1. Continued Service. The Indemnitee will continue to serve as a
director of DTE Energy so long as the Indemnitee is duly elected and qualified
in accordance with the By-Laws of
<PAGE> 2
DTE Energy in effect from time to time or until the Indemnitee resigns in
writing in accordance with applicable law.
2. Initial Indemnity.
(a) DTE Energy shall indemnify the Indemnitee when the
Indemnitee was or is a party or is threatened to be made a party to any
threatened, pending or completed action, suit or proceeding, whether civil,
criminal, administrative or investigative and whether formal or informal, other
than an action by or in the right of DTE Energy, by reason of the fact that the
Indemnitee is or was a director, officer, employee or agent of DTE Energy, or
is or was serving at the request of DTE Energy as a director, officer, employee
or agent of another foreign or domestic corporation, partnership, joint
venture, trust or other enterprise, whether for profit or not, against
expenses, including attorneys' fees, judgments, penalties, fines and amounts
paid in settlement actually and reasonably incurred by the Indemnitee in
connection with such action, suit or proceeding if the Indemnitee acted in good
faith and in a manner the Indemnitee reasonably believed to be in, or not
opposed to the best interests of DTE Energy or its shareholders, and, with
respect to any criminal action or proceeding, had no reasonable cause to
believe such conduct was unlawful. The termination of any action, suit or
proceeding by judgment, order, settlement, conviction or upon a plea of nolo
contendere or its equivalent shall not, of itself, create a presumption that
the Indemnitee did not act in good faith and in a manner which the Indemnitee
reasonably believed to be in or not opposed to the best interests of DTE Energy
or its shareholders and, with respect to any criminal action or proceeding,
that the Indemnitee had reasonable cause to believe that such conduct was
unlawful.
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<PAGE> 3
(b) DTE Energy shall indemnify the Indemnitee when the
Indemnitee was or is a party or is threatened to be made a party to any
threatened, pending or completed action or suit by or in the right of DTE
Energy to procure a judgment in its favor by reason of the fact that the
Indemnitee is or was a director, officer, employee, or agent of DTE Energy, or
is or was serving or had agreed to serve at the request of DTE Energy as a
director, officer, partner, trustee, employee or agent of another foreign or
domestic corporation, partnership, joint venture, trust or other enterprise,
whether for profit or not, against expenses, including attorneys' fees and
amounts paid in settlement actually and reasonably incurred by the Indemnitee
in connection with the action or suit, if the Indemnitee acted in good faith
and in a manner the Indemnitee reasonably believed to be in, or not opposed to
the best interests of DTE Energy or its shareholders. Indemnification shall
not be made for a claim, issue or matter in which the Indemnitee has been found
liable to DTE Energy except to the extent the Court conducting the proceeding
or another court of competent jurisdiction shall determine upon application
that the Indemnitee is fairly and reasonably entitled to indemnification in
view of all relevant circumstances whether or not the Indemnitee met the
standard of conduct set forth in this paragraph (b) or was so adjudged liable
to DTE Energy; provided that if the Indemnitee was adjudged liable, such
indemnification is limited to reasonable expenses incurred.
(c) To the extent that the Indemnitee has been
successful, on the merits or otherwise, in defense of any action, suit or
proceeding referred to in Section 2(a) or 2(b) hereof, or in defense of any
claim, issue or matter in the action, suit or proceeding, the Indemnitee shall
be indemnified against actual and reasonable expenses, including attorneys'
fees incurred by the
3
<PAGE> 4
Indemnitee in connection with the action, suit or proceeding and an action suit
or proceeding brought to enforce the mandatory indemnification provided in this
Section.
(d) Any indemnification under Section 2(a) or 2(b)
(unless ordered by a court) shall be made by DTE Energy only as authorized in
the specific case upon a determination in accordance with Section 4 hereof or
any applicable provision of the Articles of Incorporation of DTE Energy in
effect from time to time, By-Laws, other agreement, resolution or otherwise.
Such determination shall be made (i) by a majority vote of a quorum of the
Board of Directors of DTE Energy ("DTE Energy Board") consisting of directors
who are not parties or threatened to be made parties to such action, suit or
proceeding or (ii) if such a quorum is not obtainable, by a majority vote of a
committee duly designated by DTE Energy Board consisting solely of two or more
directors not at the time parties or threatened to be made parties to the suit,
action, or proceeding or (iii) by independent legal counsel (designated in the
manner provided below in this subsection (d)) in a written opinion or (iv) by
all independent directors who are not parties to such action, suit or
proceeding or (v) by the shareholders of DTE Energy (the "Shareholders"), but
shares held by directors, officers, employees or agents who are parties or
threatened to be made parties to the action suit or proceeding may not be
voted. Independent legal counsel shall be designated by DTE Energy Board or
its Committee in the manner prescribed in Section 2(d)(i) or 2(d)(ii);
provided, however, that if DTE Energy Board is unable or fails to so designate,
such designation shall be made by the Indemnitee subject to the approval of DTE
Energy (which approval shall not be unreasonably withheld). In the designation
of a committee under subsection 2(d)(ii) or the selection of independent legal
counsel by DTE Energy Board, all directors may participate. Independent legal
counsel shall not be any person or firm who, under
4
<PAGE> 5
the applicable standards of professional conduct then prevailing, would have a
conflict of interest in representing either DTE Energy or the Indemnitee in an
action to determine the Indemnitee's rights under this Agreement. DTE Energy
agrees to pay the reasonable fees and expenses of such independent legal
counsel and to indemnify fully such counsel against costs, charges and expenses
(including attorneys' and others' fees and expenses) actually and reasonably
incurred by such counsel in connection with this Agreement or the opinion of
such counsel pursuant hereto.
(e) If the Indemnitee is entitled to indemnification
under Section 2(a) or 2(b) for a portion of expenses, including reasonable
attorneys' fees, judgments, penalties, fines and amounts paid in settlement,
but not for the total amount, DTE Energy shall indemnify the Indemnitee for the
portion of the expenses, judgments, penalties, fines or amounts paid in
settlement for which the Indemnitee is entitled to be indemnified.
(f) DTE Energy shall pay or reimburse the reasonable
expenses (including attorneys' and others' fees and expenses) incurred by the
Indemnitee in the Indemnitee's capacity as a director or officer of DTE Energy
who is a party or threatened to be made a party to an action, suit or
proceeding in advance of the final disposition of such action, suit or
proceeding subject to the provisions of and in the manner prescribed by
Section 4(b) hereof.
(g) DTE Energy shall not adopt any amendment to the
Articles or By-Laws the effect of which would be to deny, diminish or encumber
the Indemnitee's rights to indemnity pursuant to the Articles, By-Laws, the
Business Corporation Act of the State of Michigan (the "BCA") or any other
applicable law as applied to any act or failure to act occurring in whole or in
part prior to the date (the "Effective Date") upon which the amendment was
approved by DTE Energy Board or the Shareholders, as the case may be. In the
event that DTE Energy shall adopt
5
<PAGE> 6
any amendment to the Articles or By-Laws the effect of which is to so deny,
diminish or encumber the Indemnitee's rights to indemnity, such amendment shall
apply only to acts or failures to act occurring entirely after the Effective
Date thereof unless the Indemnitee shall have voted in favor of such adoption
as a director or holder of record of DTE Energy's voting stock, as the case may
be.
(h) Upon application to a court by the Indemnitee
pursuant to Section 564c of the BCA, and a determination of such court that the
Indemnitee is fairly and reasonably entitled to indemnification, DTE Energy
shall pay to the Indemnitee the amount so ordered by the court.
3. Additional Indemnification.
(a) Pursuant to Section 565 of the BCA, without limiting
any right which the Indemnitee may have pursuant to Section 2 hereof, the
Articles, the By-Laws, the BCA, any policy of insurance or otherwise, but
subject to the limitations on the maximum permissible indemnity which may exist
under applicable law at the time of any request for indemnity hereunder
determined as contemplated by Section 3(a) hereof, DTE Energy shall indemnify
the Indemnitee against any amount which the Indemnitee is or becomes legally
obligated to pay relating to or arising out of any claim made against the
Indemnitee because of any act, failure to act or neglect or breach of duty,
including any actual or alleged error, misstatement or misleading statement,
which the Indemnitee commits, suffers, permits or acquiesces in while acting in
such capacity as an officer or director of DTE Energy, or, at the request of
DTE Energy, as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise. The payments which DTE
Energy is obligated to make pursuant to this Section 3 shall include without
limitation damages, judgments, settlements and charges, costs, expenses,
6
<PAGE> 7
expenses of investigation and expenses of defense of legal actions, suits,
proceedings or claims and appeals therefrom, and expenses of appeal, attachment
or similar bonds; provided, however, that DTE Energy shall not be obligated
under this Section 3(a) to make any payment in connection with any claim
against the Indemnitee:
(i) to the extent of any fine or similar governmental imposition
which DTE Energy is prohibited by applicable law from paying which
results from a final, nonappealable order; or
(ii) to the extent based upon or attributable to the Indemnitee
gaining in fact a personal profit to which the Indemnitee was not
legally entitled, including without limitation profits made from the
purchase and sale by the Indemnitee of equity securities of DTE Energy
which are recoverable by DTE Energy pursuant to Section 16(b) of the
Securities Exchange Act of 1934, as amended, and profits arising from
transactions in publicly traded securities of DTE Energy which were
effected by the Indemnitee in violation of Section 10(b) of the
Securities Exchange Act of 1934, as amended, including Rule l0b-5
promulgated thereunder.
The determination of whether the Indemnitee shall be entitled to
indemnification under this Section 3(a) may be, but shall not be required to
be, made in accordance with Section 4(a) hereof. If that determination is so
made, it shall be binding upon DTE Energy and the Indemnitee for all purposes.
(b) Expenses (including without limitation attorneys' and
others' fees and expenses) incurred by Indemnitee in defending any actual or
threatened civil or criminal action,
7
<PAGE> 8
suit, proceeding or claim shall be paid by DTE Energy in advance of the final
disposition thereof as authorized in accordance with Section 4(b) hereof.
8
<PAGE> 9
4. Certain Procedures Relating to Indemnification and Advancement
of Expenses.
(a) Except as otherwise permitted or required by the BCA,
for purposes of pursuing the Indemnitee's rights to indemnification under
Section 2(a), 2(b) or 3(a) hereof, as the case may be, the Indemnitee may, but
shall not be required to, (i) submit to DTE Energy Board a sworn statement of
request for indemnification substantially in the form of Exhibit 1 attached
hereto and made a part hereof (the "Indemnification Statement") averring that
the Indemnitee is entitled to indemnification hereunder; and (ii) present to
DTE Energy reasonable evidence of all expenses for which payment is requested.
Submission of an Indemnification Statement to DTE Energy Board shall create a
presumption that the Indemnitee is entitled to indemnification under
Section 2(a), 2(b) or 3(a) hereof, as the case may be, and DTE Energy Board
shall be deemed to have determined that the Indemnitee is entitled to such
indemnification unless within 30 calendar days after submission of the
Indemnification Statement DTE Energy Board shall determine by vote of a
majority of the directors at a meeting at which a quorum is present, based upon
clear and convincing evidence (sufficient to rebut the foregoing presumption),
and the Indemnitee shall have received notice within such period in writing of
such determination, that the Indemnitee is not so entitled to indemnification.
No such determination shall be effective unless written notice thereof,
disclosing with particularity the evidence in support of DTE Energy Board's
determination, shall have been given to the Indemnitee within 30 calendar days
after submission of the Indemnification Statement. The foregoing notice shall
be sworn to by all persons who participated in the determination and voted to
deny indemnification. The provisions of this Section 4(a) are intended to be
procedural only and shall not affect the right of the Indemnitee to
indemnification under this Agreement, and any determination by DTE Energy
9
<PAGE> 10
Board that the Indemnitee is not entitled to indemnification and any failure to
make the payments requested in the Indemnification Statement shall be subject
to judicial review as provided in Section 6 hereof.
(b) For purposes of determining whether to authorize
advancement of expenses pursuant to Section 2(e) hereof, the Indemnitee shall
submit to DTE Energy Board a sworn statement of request for advancement of
expenses substantially in the form of Exhibit 2 attached hereto and made a part
hereof (the "Undertaking"), averring that (i) the Indemnitee, in good faith,
believes that the applicable standards of conduct set forth in Section 2(a),
2(b) or 3(a), as the case may be, have been met, (ii) the Indemnitee has
reasonably incurred or will reasonably incur actual expenses in defending an
actual civil or criminal action, suit, proceeding or claim and (iii) the
Indemnitee undertakes to repay such amount if it shall ultimately be determined
that the Indemnitee did not meet the applicable standard of conduct or is not
entitled to be indemnified by DTE Energy under this Agreement or otherwise.
For purposes of requesting advancement of expenses pursuant to Section 3(b)
hereof, the Indemnitee may, but shall not be required to, submit an Undertaking
or such other form of request as the Indemnitee determines to be appropriate
(an "Expense Request"). Upon receipt of an Undertaking or Expense Request, as
the case may be, such payments shall immediately be made by DTE Energy provided
that a determination is made that facts then known to those making the
determination would not preclude indemnification under the BCA. Such
determination shall be made within 10 calendar days of the date of receipt by
DTE Energy of the Expense Request and shall be made in the manner specified in
Section 2(d). No security shall be required in connection with any
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<PAGE> 11
Undertaking or Expense Request and any Undertaking or Expense Request shall be
accepted without reference to the Indemnitee's ability to make repayment.
5. Subrogation; Duplication of Payments.
(a) In the event of payment under this Agreement, DTE
Energy shall be subrogated to the extent of such payment to all of the rights
of recovery of the Indemnitee, who shall execute all papers required and shall
do everything that may be necessary to secure such rights, including the
execution of such documents necessary to enable DTE Energy effectively to bring
suit to enforce such rights.
(b) DTE Energy shall not be liable under this Agreement
to make any payment in connection with any claim made against the Indemnitee to
the extent the Indemnitee has actually received payment (under any insurance
policy, the Articles, the By-Laws or otherwise) of the amounts otherwise
payable hereunder.
6. Enforcement.
(a) If a claim for indemnification made to DTE Energy
pursuant to Section 4 hereof is not paid in full by DTE Energy within 30
calendar days after a written claim has been received by DTE Energy, the
Indemnitee may at any time thereafter bring suit against DTE Energy to recover
the unpaid amount of the claim.
(b) In any action brought under Section 6(a) hereof, it
shall be a defense to a claim for indemnification pursuant to Section 2(a)
or 2(b) hereof that the Indemnitee has not met the standards of conduct which
make it permissible under the BCA for DTE Energy to indemnify the Indemnitee
for the amount claimed, but the burden of proving such defense shall be on DTE
Energy. Neither the failure of DTE Energy (including DTE Energy Board,
independent legal
11
<PAGE> 12
counsel or the Shareholders) to have made a determination prior to commencement
of such action that indemnification of the Indemnitee is proper in the
circumstances because the Indemnitee has met the applicable standard of conduct
set forth in the BCA, nor an actual determination by DTE Energy (including DTE
Energy Board, independent legal counsel or the Shareholders) that the
Indemnitee has not met such applicable standard of conduct, shall be a defense
to the action or create a presumption that the Indemnitee has not met the
applicable standard of conduct.
(c) It is the intent of DTE Energy that the Indemnitee
not be required to incur the expenses associated with the enforcement of the
Indemnitee's rights under this Agreement by litigation or other legal action
because the cost and expense thereof would substantially detract from the
benefits intended to be extended to the Indemnitee hereunder. Accordingly, if
it should appear to the Indemnitee that DTE Energy has failed to comply with
any of its obligations under the Agreement or in the event that DTE Energy or
any other person takes any action to declare this Agreement void or
unenforceable, or institutes any action, suit or proceeding designed (or having
the effect of being designed) to deny, or to recover from, the Indemnitee the
benefits intended to be provided to the Indemnitee hereunder, DTE Energy
irrevocably authorizes the Indemnitee from time to time to retain counsel of
the Indemnitee's choice, at the expense of DTE Energy as hereafter provided, to
represent the Indemnitee in connection with the initiation or defense of any
litigation or other legal action, whether by or against DTE Energy or any
director, officer, stockholder or other person affiliated with DTE Energy, in
any jurisdiction. Regardless of the outcome thereof, DTE Energy shall pay and
be solely responsible for any and all costs, charges and expenses, including
without limitation attorneys' and others' fees and expenses,
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<PAGE> 13
reasonably incurred by the Indemnitee (i) as a result of DTE Energy's failure
to perform this Agreement or any provision thereof or (ii) as a result of DTE
Energy or any person contesting the validity or enforceability of this
Agreement or any provision thereof as aforesaid.
7. Merger or Consolidation.
In the event that DTE Energy shall be a constituent
corporation in a consolidation, merger or other reorganization, DTE Energy, if
it shall not be the surviving, resulting or other corporation therein, shall
require as a condition thereto the surviving, resulting or acquiring
corporation to agree to indemnify the Indemnitee to the full extent provided in
this Agreement. Whether or not DTE Energy is the resulting, surviving or
acquiring corporation in any such transaction, the Indemnitee shall also stand
in the same position under this Agreement with respect to the resulting,
surviving or acquiring corporation as the Indemnitee would have with respect to
DTE Energy if its separate existence had continued.
8. Nonexclusivity and Severability.
(a) The right to indemnification provided by this
Agreement shall not be exclusive of any other rights to which the Indemnitee
may be entitled under the Articles, By-Laws, the BCA, any other statute,
insurance policy, agreement, vote of shareholders or of directors or otherwise,
both as to actions in the Indemnitee's official capacity and as to actions in
another capacity while holding such office, and shall continue after the
Indemnitee has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the Indemnitee's heirs, executors and administrators.
(b) If any provision of this Agreement or the application
of any provision hereof to any person or circumstances is held invalid,
unenforceable or otherwise illegal, the
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remainder of this Agreement and the application of such provision to other
persons or circumstances shall not be affected, and the provision so held to be
invalid, unenforceable or otherwise illegal shall be reformed to the extent
(and only to the extent) necessary to make it enforceable, valid and legal.
9. Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Michigan, without giving
effect to the principles of conflict of laws thereof.
10. Modification; Survival. This Agreement contains the entire
agreement of the parties relating to the subject matter hereof. This Agreement
may be modified only by an instrument in writing signed by both parties hereto.
The provisions of this Agreement shall survive the death, disability, or
incapacity of the Indemnitee or the termination of the Indemnitee's service as
a an officer or director of DTE Energy and shall inure to the benefit of the
Indemnitee's heirs, executors and administrators.
11. Certain Terms. For purposes of this Agreement, references to
"other enterprises" shall include employee benefit plans; references to "fines"
shall include any excise taxes assessed on Indemnitee with respect to any
employee benefit plan; and references to "serving at the request of DTE Energy"
shall include any service as a director, officer, employee or agent of DTE
Energy which imposes duties on, or involves services by, the Indemnitee with
respect to an employee benefit plan, its participants or beneficiaries;
references to the masculine shall include the feminine and vice versa;
references to the singular shall include the plural and vice versa; and if the
Indemnitee acted in good faith and in a manner the Indemnitee reasonably
believed to be in the interest of the participants and beneficiaries of an
employee benefit plan the Indemnitee shall
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be deemed to have acted in a manner "not opposed to the best interests of DTE
Energy" as referred to herein.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
DTE ENERGY COMPANY
By:
-------------------------------------
Susan M. Beale
Vice President and Corporate Secretary
INDEMNITEE
-------------------------------------
[Name]
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EXHIBIT 1
INDEMNIFICATION STATEMENT
STATE OF MICHIGAN )
) SS
COUNTY OF _____________________________________ )
I, _______________________, being first duly sworn, do depose
and say as follows:
1. This Indemnification Statement is submitted pursuant
to the Indemnification Agreement, dated as of ________, 1995, between DTE Energy
Company, a Michigan corporation ("DTE Energy"), and the undersigned.
2. I am requesting indemnification against charges,
costs, expenses (including attorneys' and others' fees and expenses),
judgments, fines and amounts paid in settlement, all of which (collectively,
"Liabilities") have been or will be incurred by me in connection with an actual
or threatened action, suit, proceeding or claim to which I am a party or am
threatened to be made a party.
3. With respect to all matters related to any such
action, suit, proceeding or claim, I am entitled to be indemnified as herein
contemplated pursuant to the aforesaid Agreement.
4. Without limiting any other rights which I have or may
have, I am requesting indemnification against Liabilities which have arisen or
may arise out of
________________________
(Name)
Subscribed and sworn to before me, a Notary Public in and for
said County and State, this ______ day of __________, 19__.
[Seal] _______________________________
My commission expires the _______ day of _________, 19__.
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EXHIBIT 2
UNDERTAKING
STATE OF MICHIGAN )
) SS
COUNTY OF __________ )
I, _______________________, being first duly sworn do depose
and say as follows:
1. This Undertaking is submitted pursuant to the
Indemnification Agreement (the "Agreement"), dated as of _____, between DTE
Energy Company, a Michigan corporation ("DTE Energy"), and the undersigned.
2. I am requesting advancement of certain costs, charges
and expenses which I have incurred or will incur in defending an actual or
pending civil or criminal action, suit, proceeding or claim.
3. I affirm my good faith belief that I meet the
applicable standard of conduct set forth in Section 2(a), 2(b) or 3(a) of the
Agreement.
4. I hereby undertake to repay this advancement of
expenses if it shall ultimately be determined that I did not meet the
applicable standard of conduct or am not entitled to be indemnified by DTE
Energy under the aforesaid Agreement or otherwise.
5. My undertaking to repay is my unlimited general
obligation.
6. The costs, charges and expenses for which advancement
is requested are, in general, all expenses related to ________________________.
___________________________
(Name)
Subscribed and sworn to before me, a Notary Public in and for
said County and State, this ____ day of __________, 19__.
[Seal] ___________________________
My commission expires the ______ day of __________, 19__.
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EXHIBIT 3L(*10.3)
THE DETROIT EDISON COMPANY ("COMPANY")
SHAREHOLDER VALUE IMPROVEMENT PLAN - A
OFFICIAL PLAN DOCUMENT
(POSITIONS OF VICE PRESIDENT AND ABOVE)
A PART OF THE COMPANY-WIDE PROGRAM TO INCREASE SHAREHOLDER VALUE.
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AS AMENDED AND RESTATED EFFECTIVE JANUARY 1, 1996
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SHAREHOLDER VALUE IMPROVEMENT PLAN-A
AS AMENDED AND RESTATED EFFECTIVE JANUARY 1, 1996
OVERVIEW
The Shareholder Value Improvement Plan - A (Plan) is designed to encourage
continued improvement in performance and operating results. The Plan's ultimate
objective is to increase shareholder value. It provides a method for senior
levels of management to share in the added value that they create by
contributing to corporate performance improvement.
The Plan provides for possible financial awards to eligible members of senior
management if specified annual corporate and organizational unit goals are
achieved and is intended to motivate senior levels of management toward taking
actions that have long-term performance outcomes which improve shareholder
value. For Plan years 1991, 1992 and 1993, a portion of approved awards was
deferred for a specified period of time. Commencing with the 1996 Plan Year,
recipients of Plan awards will be permitted, under specified conditions, to
defer the payment of awards.
The Plan measures calendar year performance. The current year's standards and
requirements will be communicated annually.
ADMINISTRATION
The Organization and Compensation Committee (Committee) of the Board of
Directors is Plan Administrator with responsibility for the administration of
the Plan. The Committee has the authority to interpret the provisions of the
Plan and prescribe any regulations relating to its administration. The
decisions of the Committee with respect thereto shall be conclusive.
The Committee, on an annual basis, will review and if appropriate, recommend to
the Board of Directors for approval, the specific criteria for eligibility, the
type and timing of awards and the manner of payment of awards (current and/or
deferred), the performance measures and related weights to be used in computing
award amounts for Plan Years 1991, 1992, 1993 and 1994 and the Performance Fund
for Plan year 1995 and thereafter and the
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performance levels for each performance measure. The Board of Directors
reserves the right to amend, suspend or terminate the Plan at any time (See
"Awards").
Current awards calculated under the terms of the Plan are not payable until
such time as the Board's approval has been granted. The Board of Directors
reserves the right to reduce or cancel any awards that might otherwise be made
if in its sole discretion it determines that the performance achieved is not
indicative of an improvement in shareholder value. If such a determination is
made, the Plan may be canceled or substantially modified with the result of
terminating or decreasing any awards that might otherwise be made hereunder.
The Treasurer will be responsible for making award payments, for establishing
and maintaining the equity and deferred accounts for award recipients, and for
maintaining all necessary records regarding the valuation and payment of
awards.
The Vice President-Human Resources will assist the Committee in the
development, administration and communication of the Plan.
ELIGIBILITY
Only those individuals that hold and actively perform (where "hold and actively
perform" excludes all temporary assignments, all step-up assignments and
lengthy periods of absences) in positions of Vice President or above who
receive at least a "satisfactory" or "solid" performance appraisal for the
applicable calendar year will be eligible to participate in the Plan. The
Board of Directors may at any time specify additional positions that may be
eligible to participate in the Plan.
Any person who is elected to an eligible position in The Detroit Edison Company
will become eligible to participate in the Plan provided, however, that any
such participant must hold, and actively perform in, one or more eligible
positions for a total of at least seven months during a Plan year to receive
any award under the Plan. Employes are not eligible to participate in the Plan
if they are eligible to participate in any other Company
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incentive program (other than the Long Term Incentive Plan to be submitted to
Common Shareholders for approval in April 1995).
Exceptions to the eligibility criteria may be authorized by the Board of
Directors.
Participation in the Plan does not guarantee continued employment with the
Company.
AWARD OPPORTUNITY
For Plan years 1991, 1992, 1993 and 1994, awards were calculated as a percent
of pay based on the achievement of specific performance measures. Each
performance measure was assigned performance levels and weights. The amount of
an award was dependent upon the achieved level of performance, the associated
weight and the applicable award opportunity percentage.
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For Plan years 1991, 1992, 1993 and 1994, the award opportunity percentage that
applied to participants was determined by the eligible position that each
applicable participant held and actively performed for at least seven months
during the calendar year (Plan year). If during a calendar year participants
held and actively performed in different eligible positions for a total of at
least seven months, their award was calculated at the award level for the
lowest eligible position they held provided that they did not hold and actively
perform in a single eligible position for at least seven months, in which event
the eligible position held for seven months was used for purposes of the Plan.
Effective with the 1995 Plan year, awards, if any, will be payable from a fund
("Performance Fund") established by multiplying the base salary (including
applicable amounts deferred under Company-sponsored benefit plans) of otherwise
eligible members of senior management by a percent based upon the achievement
of specific performance measures. (For purposes of the Performance Fund, base
salary is defined as being the sum of the base salary of all otherwise eligible
members of senior management who performed in one or more senior management
positions for a total of at least seven months during the applicable calendar
year which is also a Plan year.)
PERFORMANCE MEASURES, LEVELS AND WEIGHTS
The measures of performance and weight applicable to each Plan year will be
communicated annually to all eligible employes.
AWARDS
Award amounts for 1991, 1992, 1993 and 1994 were calculated with reference to
the base salary paid during the applicable calendar year including certain
amounts deferred under Company-sponsored benefit plans. Effective with the
1995 Plan year, award amounts will be payable from the Performance Fund and
will be granted, in the sole discretion of the Board of Directors, to otherwise
eligible members of senior management, in such amounts, if any, as are
determined to be appropriate by the Board of Directors.
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For Plan years 1991, 1992, 1993 and 1994, if an otherwise eligible participant
met the eligibility criteria but terminated employment and the termination was
due to disability (where disability is defined as being eligible to receive a
benefit under the Company's Long Term Disability Plan) or retirement (where
retirement is defined as a resignation at age 55 or older and with at least 10
years of Company service or at age 65 or older) or died, such otherwise
eligible participant remained eligible for a prorated award for the applicable
Plan year.
Awards under the Plan are not considered compensation for purposes of the
Company's qualified and non-qualified savings plans, the Company's qualified
and non-qualified retirement plans, insurance or any other Company-sponsored
qualified or non-qualified employe benefit programs.
See "Forfeiture" herein.
AWARD CALCULATION
For Plan years 1991, 1992, 1993 and 1994, award amounts were calculated by
multiplying a participant's base salary (as defined previously in "Awards") by
the award percentage approved by the Board of Directors. Effective with the
1995 Plan year, awards, if any, will be payable from the Performance Fund in
such amounts as deemed appropriate by the Board of Directors.
AWARD PAYMENT
For Plan years 1991, 1992 and 1993, fifty percent (50%) of annual awards were
paid as soon as practicable following approval by the Board of Directors.
Effective with the 1994 Plan year, annual awards, if any, will be paid as soon
as practicable following approval by the Board of Directors unless deferred as
permitted herein.
Effective with the 1996 Plan year, members of senior management will be
permitted to defer the payment of 50% to 100% of an approved award for a
period of from one to five years ("Deferred Awards"). A Deferred Award Account
will be established for each
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award recipient with a timely Deferral Notice on file with the Company.
Deferrals must be irrevocably submitted prior to the commencement of the Plan
year during which the services giving rise to the award will be performed on a
form ("Deferral Notice") to be furnished by the Company. For example, a
Deferral Notice for an award to be based on 1996 performance must be filed with
the Company by the end of 1995. Once filed with the Company, the Deferral
Notice may not be changed or revoked.
For Plan years 1991, 1992 and 1993, fifty percent (50%) of the annual awards
were converted to equity units and deferred for a three-year period. This
deferred portion of the approved award was deemed to be invested, prior to
January 1, 1996, in Company Common Stock, and, effective January 1, 1996, in
the common stock of DTE Energy Company (the common stock of the Company and of
DTE Energy Company, as applicable, are referred to herein as "Common Stock"),
by converting the award into equity units equal in value to the average of the
high and low sales prices of Detroit Edison Common Stock as listed in the Wall
Street Journal for the New York Stock Exchange Composite Tape, on the last
business day on which such stock was traded in the Plan year to which the award
related. Equity units were credited to each participant's unfunded equity
account as described in the section entitled "Equity Units".
See "Forfeiture" herein.
EQUITY UNITS
For Plan years 1991, 1992 and 1993, unfunded equity accounts were created for
each participant and fifty percent (50%) of the approved award was converted
into equity units. Subsequently, as dividends were and are paid on Common
Stock, a dividend was and will be deemed to be paid on each equity unit in an
amount equal to the dividend which is declared and paid on the Common Stock.
Deemed dividends have been and will be converted to equity units equal in value
to the average of the high and low sales prices of the Common Stock as listed
in the Wall Street Journal for the New York Stock Exchange Composite Tape on
the dividend payment date, or if such day was not or is not a business day, on
the business day immediately preceding the dividend date. Equity units created
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as a result of deemed dividends have been and will be credited to each
participant's unfunded equity account as of the dividend payment date, or if
such day was or is not a business day, on the business day immediately
preceding the dividend date.
The value of equity units is subject to appreciation and depreciation depending
upon the trading price of the Common Stock as listed in the Wall Street Journal
for the New York Stock Exchange Composite tape.
DEFERRED AWARD ACCOUNTS
Effective for Plan Year 1996 and thereafter, Deferred Award Accounts will be
established for each recipient with a timely Deferral Notice on file as soon as
practicable following Board approval of an award. Amounts in Deferred Award
Accounts will be deemed to earn interest at a rate calculated on the last
business day of each month with reference to the Five-Year United States
Treasury Bond rate, as reported in a nationally-recognized financial service.
Deferred Awards, including deemed earnings thereon, will be payable as soon as
practicable in the calendar year selected by an award recipient in the Deferral
Notice. In the event that a participant with a Deferred Account dies, retires
or terminates employment with the Company and its Affiliates prior to the time
established for payment in the Deferral Notice, such participant's Deferred
Account, plus earnings thereon, shall be paid to such participant or
participant's designated beneficiary as soon as possible thereafter. For
purposes of the Plan, the term "Affiliate" shall mean any parent of the Company
or any entity in which the Company or any parent of the Company directly or
indirectly beneficially owns more than 50% of the voting securities.
EQUITY ACCOUNT PAYMENTS
The value of the equity units established for Plan Years 1991, 1992 and 1993
will be paid to the eligible participant in a lump sum cash payment after the
end of the third year following the
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year to which the award relates provided the participant is actively employed
by the Company or an Affiliate at the end of the third year (December 31) of
the three-year award deferral period. (For example, the value of an equity
account that is based on the 1992 Plan year is payable as soon as practicable
during 1996.) In the event that the participant terminates employment prior to
the end of the third year following the year to which the award relates, and
the termination is due to disability (where disability is defined as being
eligible to receive a benefit under a long-term disability plan of the Company
or an Affiliate) or retirement (where retirement is defined as a resignation at
age 55 or older and with at least 10 years of service with the Company and its
Affiliates or at age 65 or older), the total value of any or all unfunded
equity accounts will be converted to cash and paid as soon as practicable in
a lump sum cash payment to the participant. In the event that the participant
dies, the total value of all unfunded equity account balances will be paid as
soon as practicable in a lump sum cash payment.
The value of the unfunded equity account will be determined by multiplying the
number of equity units in the account by the average of the high and low sales
prices of Common Stock, as listed in the Wall Street Journal for the New York
Stock Exchange Composite Tape, on (1) the day the three-year period ends; (2)
the day the employe terminates employment due to disability (last day of
employment); (3) the day the employe dies (official date of death); or (4) the
day the employe retires (last day of employment), as applicable. If the day
the three-year period ends or the last day of employment or date of death is
not a business day, the deferred award will be valued on the preceding business
day. If the date of a participant's termination of employment due to
disability or retirement as defined herein or death or the day after such
three-year period ends falls within the record date and the associated dividend
payment date for the Common Stock, then such dividend will be deemed to be paid
on the equity units in the participant's unfunded account. The value of such
deemed dividend will be paid in cash.
FORFEITURE
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Eligible participants who are discharged or resign from the Company and its
Affiliates (except for terminations due to disability or retirement as defined
herein or death) prior to the end of the third year following the year to which
an award required to be deferred by the Company relates will forfeit the value
of the equity units.
Unless the termination is the result of disability, death or by normal or early
retirement as defined herein, a participant will forfeit an annual award
required to be deferred by the Company if the participant is not actively
employed by the Company or an Affiliate at the end of the Plan year (December
31).
Deferred Accounts are not subject to forfeiture.
FUNDING STATUS
Benefits under the Plan including any equity accounts and Deferred Accounts are
payable solely from the general assets of the Company and shall remain unfunded
and unsecured (under federal income tax laws and Title I of the Employee
Retirement Income Security Act of 1974, as amended) during the entire period of
the Plan's existence. The participant, the participant's spouse or
beneficiary are merely general creditors of the Company and the obligations of
the Company hereunder are purely contractual and shall not be funded or secured
in any way. If and to the extent the Company chooses to actually invest in any
Common Stock, assets acquired by the Company shall remain the sole property of
the Company, subject to the claims of its general creditors, and shall not be
deemed to form part of the participant's unfunded equity account.
NON-ALIENABILITY AND NON-TRANSFERABILITY
The right of a participant, participant's spouse or beneficiary to payment of
any benefit or deferred compensation hereunder shall not be alienated,
assigned, transferred, pledged or encumbered and shall not be subject to
execution, attachment or similar process. No participant may borrow against
the unfunded equity or deferred account established for his or her benefit
hereunder. No account
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shall be subject in any manner to alienation, sale, transfer, assignment,
pledge, encumbrance, charge, garnishment, execution or levy of any kind,
whether voluntary or involuntary, including but not limited to any liability
which is for alimony or other payments for the support of a spouse or former
spouse, or for any other relative of any employe. Any attempted assignment,
pledge, levy or similar process shall be null and void and without effect.
BENEFICIARY DESIGNATION
Each eligible participant may name any beneficiary to whom awards under the
Plan are to be paid in case of the eligible participant's death before he/she
receives an award hereunder. Each designation will revoke all prior
designations by the eligible participant and shall be on a form prescribed by
the Plan Administrator and will be effective only when filed by the eligible
participant with the Treasurer. In the absence of any such designation, awards
due shall be paid to the participant's (1) life insurance beneficiary
designated by the participant with respect to life insurance maintained by the
Company for the benefit of the participant, or, in the absence of a designated
life insurance beneficiary, (2) to the participant's estate.
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EXHIBIT 3L(*10.6)
THIRD RESTATEMENT OF
THE DETROIT EDISON COMPANY
SAVINGS REPARATION PLAN
The Detroit Edison Company Savings Reparation Plan (the "Plan"), established by
The Detroit Edison Company (the "Company") effective May 22, 1989, as amended
and restated effective June 27, 1994, and June 26, 1995, is hereby amended and
restated as of January 1, 1996, by this Third Restatement.
SECTION I - PURPOSE
The purpose of this Plan is to offer a retirement savings alternative for those
eligible executives whose permissible contributions to The Detroit Edison
Company Savings & Investment Plan (hereinafter the "Savings & Investment Plan"
and "Plan") are subject to the compensation limitation of Section 401(a)(17) of
the Internal Revenue Code. The benefits provided under this Plan to any
individual shall be separate from and in addition to any benefit provided under
the Savings & Investment Plan and any other plan or program maintained by the
Company. The amount of benefit under this Plan is to be determined solely in
accordance with Section 4 hereof and is not dependent or conditioned on
participation in the Savings & Investment Plan. Therefore, this Plan is not
intended to and shall not be construed so as to provide the same
dollar-for-dollar benefit as a participant would have received under the
Savings & Investment Plan if contributions had not been limited by Section
401(a)(17), nor is this Plan intended to compensate an employee for the benefit
loss which results if the employee elects not to participate in the Savings &
Investment Plan to the full extent permitted thereunder.
SECTION 2 - ELIGIBILITY
Employees of an Employer whose benefits under the Savings & Investment Plan are
subject to limitation by the provisions set forth therein to conform to Section
401(a)(17) of the Internal Revenue Code shall be eligible to elect to
participate and receive the benefits provided under this Plan. However, if an
eligible employee hereunder obtains a hardship distribution under the Savings &
Investment Plan, his or her right to elect to participate hereunder shall be
suspended for twelve months after receipt of the hardship distribution. In no
event shall a person who is not eligible to participate in the Savings &
Investment Plan be eligible to elect to participate and receive the benefits
provided under this Plan.
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SECTION 3 - PARTICIPATION AND AMOUNT OF BENEFITS
(a) Any employee who is eligible to elect to receive the benefits provided
under this Plan may participate in this Plan by irrevocably electing
to defer 1% to 15% of his or her Basic Compensation, as defined in
the Savings & Investment Plan, in excess of the compensation
limitations of Section 401(a)(17) of the Internal Revenue Code.
Deferrals must be made in whole percents. The amount by which an
employee's Basic Compensation exceeds the compensation limitations of
Section 401(a)(17) shall hereinafter be referred to as "excess basic
compensation". The amount of compensation which the employee defers
hereunder shall hereinafter be referred to as "deferred excess basic
compensation".
An election to defer a percentage of excess basic compensation will
become effective on January 1 of the calendar year subsequent to the
calendar year during which the election is received by the
Administrator. An election to defer a percentage of excess basic
compensation will remain in effect until an election to change the
percentage of excess basic compensation deferred or a revocation of
the election becomes effective. An election to change the percentage
of excess basic compensation deferred or a revocation of an election
to defer a percentage of excess basic compensation will become
effective on January 1 of the calendar year subsequent to the
calendar year during which the election to change the percentage of
excess basic compensation deferred or the revocation of the election
is received by the Administrator.
All elections and revocations of elections must be made on forms
provided by the Company and will become effective only after they are
received by the Administrator. In no event shall an employee be
permitted to elect to defer excess basic compensation, to elect to
change the percentage of excess basic compensation deferred, or to
revoke an election to defer excess basic compensation which has
already been earned by the employee. The actual deferral of deferred
excess basic compensation will not commence until the employee
compensation to date for the calendar year exceeds the compensation
limitation of Section 401(a)(17) of the Internal Revenue Code.
Notwithstanding the foregoing, in the first plan year in which a
participant becomes eligible to participate in this Plan, the
participant may make an election to defer a percentage of excess
basic compensation for services to be performed subsequent to the
election within 30 days after the employee becomes eligible to
participate in this Plan. Such election shall be effective with the
pay period
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commencing immediately after the election is timely received by the
Administrator.
(b) An employee's deferred excess basic compensation will be deemed to be
invested in an investment option(s) available to employees under the
Savings & Investment Plan. Currently, the Savings & Investment Plan
allows participants to invest in the funds listed below:
(a) Fidelity Retirement Money Market Portfolio
(b) Fidelity Intermediate Bond Fund
(c) Fidelity Asset Manager
(d) Fidelity U.S. Equity Index Portfolio
(e) Fidelity Growth & Income Portfolio
(f) Fidelity Magellan Fund
(g) Fidelity ContraFund
(h) Fidelity OTC Portfolio
(i) Fidelity Overseas Fund
(j) Detroit Edison Common Stock Fund
As part of the employee election to defer excess basic compensation,
the employee shall make an investment designation, which shall
indicate (1) the investment option(s) in which the employee deferred
excess basic compensation will be deemed to be invested each month and
(2) the percentage of deferred excess basic compensation to be deemed
to be invested in each of the investment options selected each month.
The distribution may be 100 percent in one fund, or divided among any
combination of the ten funds in multiples of 10 percent, as long as
the combination of deemed fund investments equals 100 percent.
Notwithstanding the foregoing, the Employer matching contribution
credited to an employee's account each month, pursuant to paragraph
(c) of Section 3 of this Plan, will always be deemed to be invested
entirely in the Detroit Edison Common Stock Fund.
If a change in investment options available to participants in the
Savings & Investment Plan eliminates an investment option previously
selected by a participating employee hereunder as part of his or her
deemed investment option, the amount of deferred excess basic
compensation which is deemed to be invested (including earnings, if
any, deemed to be applicable) in the discontinued investment option on
the last business day of the month immediately preceding the date that
it is discontinued shall be deemed to be transferred to participating
units in the Detroit Edison Common Stock Fund valued as of the last
business day of the month immediately preceding the
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effective date of the investment option's discontinuance unless, in
the opinion of the Savings & Investment Plan Committee (as defined in
the Savings & Investment Plan) it is determined that the discontinued
investment option has been replaced by an equivalent investment
option. In this case, the amount of the employee's excess basic
compensation that is deemed to be invested in the discontinued
investment option shall be transferred to the equivalent investment
option at the time such investment option is discontinued and all
additional deferred excess basic compensation that the employee
elected to be deemed to be invested in the discontinued investment
option shall be deemed to be invested in the investment option
determined to be equivalent by the Savings & Investment Plan
Committee. In the event that the Savings & Investment Plan Committee
has not determined that there is an equivalent investment option with
respect to the discontinued investment option, then all additional
deferred excess basic compensation that the employee elected to be
deemed to be invested in the discontinued investment option shall be
deemed to be invested in the Detroit Edison Common Stock Fund and such
deemed investment shall continue until the effective date of a change
in investment designation which is received by the Administrator
pursuant to Section 3(d).
The aforementioned deemed investment options available hereunder are
merely intended to serve as tools to measure the value of the amount
to be paid to the employee under Section 4 of this Plan. They are not
intended to and shall not be construed to require the Employer to make
actual investments of the type anticipated by the deemed investment
option selected by the employee. If and to the extent the Employer
chooses to actually invest in the investment option selected by the
employee, any assets acquired by the Employer shall remain the sole
property of the Employer subject to the claims of its general
creditors and shall not be deemed to form part of the employee
account. Notwithstanding anything herein to the contrary, in no event
shall anything be done under this Plan by reference to the Savings &
Investment Plan which would cause any participating employee to be in
constructive receipt of amounts credited to his or her account under
this Plan.
(c) An unfunded bookkeeping account will be established and maintained for
each participating employee which shall be credited with the
employee's deferred excess basic compensation paid as of the last
business day of each month. In addition, as of the last business day
of the month, the Company will credit an amount to the employee's
account equal to fifty cents for each dollar the employee defers of up
to eight percent of his or her excess basic compensation for that
month. The employee's contribution for that month will be converted
into participating units/shares equivalent in value to the
corresponding participating units/shares on the last business day of
that month in the Savings
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& Investment Plan investment option(s) which have been designated by
the employee as his or her deemed investment option(s). In the case
of the Employer's matching contributions, the amount attributable to
that month shall be converted into participating units equivalent in
value to participating units on the last business day of that month in
the Savings & Investment Plan Detroit Edison Common Stock Fund. The
number of participating units/shares (rounded to the nearest
hundredth) will be determined by dividing the total amount credited to
the employee's account for the month, which is deemed to be invested
in an investment option, by the actual value of a participating
unit/share in that investment option under the Savings & Investment
Plan. The value of the applicable participating unit/share in the
Savings & Investment Plan investment option shall be determined on the
last business day of the month during which the deferred excess basic
compensation to be converted has been credited to the employee's
account. Unless otherwise specified herein, the valuation of the
employee's unfunded bookkeeping account will follow the procedures
utilized by the Savings & Investment Plan Trustee in determining the
valuation of contributions and investments in the Savings & Investment
Plan.
(d) Subject to the procedures identified in Section 3(b) hereof, an
investment designation made by an employee will remain in effect until
changed by the employee. The employee may change his or her
investment designation by giving written notice to the Administrator
on a form provided for such purpose. A change of an investment
designation may be made once each calendar quarter. The participant
must designate whether the change applies (1) to amounts already
credited to the participant's account, (2) to the participant's future
contributions to the Plan or (3) to the amounts already credited to
the participant's account and to the participant's future
contributions to the Plan. A change of an investment designation
shall be effective on the last business day of the month during which
written notice of such change is received by the Administrator.
SECTION 4 - PAYMENT OF BENEFITS
(a) An employee's unfunded bookkeeping account will be valued upon
termination of employment with the Employer and all Affiliates. The
account value will be determined by multiplying the number of
participating units/shares in the employee account relative to each
investment option in which the employee deferred excess basic
compensation and the Employer's matching contribution have been deemed
to have been invested by the value of a participating unit/share in
the applicable investment option of the Savings & Investment Plan
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in which the deferred excess basic compensation and the Employer's
matching contribution have been deemed to have been invested. The
value of the participating units/shares in this Plan shall be
determined on the business day preceding the day on which termination
of employment occurs. The account will be distributed to the employee
in one lump-sum payment as soon as practicable, but no later than 30
days, after the employee's termination of employment.
(b) In the event that an employee receives an assessment of income taxes
from the Internal Revenue Service which treats any amount in the
employee's unfunded bookkeeping account as being includible in such
employee's gross income prior to actual payment under Section 4(a)
hereof, the Employer shall pay an amount equal to such income taxes to
such employee within thirty days after the Company receives written
notice from such employee of such assessment, and such employee's
unfunded bookkeeping account shall be reduced by an amount equal to
such income taxes.
(c) Each payment under the Plan shall be reduced by any federal, state, or
local income taxes which the Company determines should be withheld
from such payment.
(d) An employee may name any beneficiary or beneficiaries (subject to
restrictions imposed by law, if any) to whom amounts credited to his
or her account under this Plan are to be paid in case of the
employee's death before the employee receives all amounts credited to
his or her account. Each designation will revoke all prior
designations by the employee, shall be on a form prescribed by the
Company and will be effective only when received by the Administrator.
In the absence of any such designation, the unpaid amount in an
employee's account at the time of the employee's death shall be paid
to the employee's estate.
(e) An employee will not be permitted to defer excess basic
compensation and will not be credited with the Employer's matching
contribution for a month unless he or she is employed by the Employer
on the last business day of the month. Therefore, if an employee
terminates employment with the Employer prior to the last business day
of the month, the employee shall receive what would have been that
month's deferred excess basic compensation in his or her final
paycheck and will not receive any matching contribution from the
Employer for the month of termination of employment.
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(f) The amount of each employee's excess basic compensation which he or
she elects to defer under the plan shall be deemed to be compensation
for the purpose of calculating the amount of an employee's benefits or
contributions under a pension or a retirement plan qualified under
Section 401(a) of the Internal Revenue Code, and under any
non-qualified deferred compensation arrangements maintained by the,
Employer except to the extent specifically provided to the contrary in
any such plan.
(g) Benefits under this Plan shall be payable to or in respect of an
Employer's former employees solely from the general assets of such
Employer; provided, however, that no provisions of the Plan shall
preclude an Employer from segregating assets which are intended to be
a source for payment of benefits under the Plan. The Plan shall
remain unfunded during the entire period of its existence for purposes
of the Federal income tax laws and Title I of ERISA. The Company
intends that this Plan be maintained primarily for a select group of
management or highly compensated employees.
SECTION 5 - RIGHTS OF EMPLOYEES
Except to the extent provided in Section 7 herein below, no employee or an
employee's spouse or beneficiary shall at any time have any vested right to
receive the benefits provided by this Plan. An employee, employee's spouse or
beneficiary shall not have any interest in the deferred excess basic
compensation or monthly award credited to his or her unfunded bookkeeping
account until such account is distributed in accordance with the Plan. All
deferred excess basic compensation and any other amounts otherwise credited to
the unfunded bookkeeping account of an employee under the Plan shall remain the
sole property of the Employer, subject to the claims of its general creditors
and available for its use for whatever purposes are desired. The employee,
employee's spouse or beneficiary is merely a general unsecured creditor of the
Employer and the obligation of the Employer hereunder is purely contractual and
shall not be funded or secured in any way.
The right of an employee, employee's spouse or beneficiary to payment of any
benefit or deferred compensation hereunder shall not be alienated, assigned,
transferred, pledged or encumbered and shall not be subject to execution,
attachment or similar process. No employee may borrow against the unfunded
bookkeeping account established for his or her benefit hereunder. No account
shall be subject in any manner to anticipation, alienation, sale, transfer,
assignment, pledge, encumbrance, charge, garnishment, execution or levy of any
kind, whether voluntary or involuntary, including but not limited to any
liability which is for alimony or other payments for the support of a spouse or
former spouse, or for any other relative of any employee. Any
7
<PAGE> 8
attempted assignment, pledge, levy or similar process shall be null and void
and without effect.
Employees who participate in this Plan assume the risks associated with
fluctuations in the value of all deemed investment options, including the
Fidelity Retirement Money Market Portfolio, Fidelity Intermediate Bond Fund,
Fidelity Asset Manager, Fidelity U.S. Equity Index Portfolio, Fidelity Growth &
Income Portfolio, Fidelity Magellan Fund, Fidelity ContraFund, Fidelity OTC
Portfolio, Fidelity Overseas Fund, and Detroit Edison Common Stock Fund.
SECTION 6 - ADMINISTRATION; ARBITRATION
(a) This Plan shall be administered by the Director of Benefit Plan
Administration of the Company (the "Administrator") as an unfunded
plan which is not intended to meet the qualification requirements of
Section 401 of the Internal Revenue Code. The Administrator's
decisions in all matters involving the interpretation, application and
administration of this Plan shall be conclusive.
(b) The Plan shall at all times be maintained by the Company and
administered by the Administrator as a plan wholly separate from the
Savings & Investment Plan, and any other plan or program maintained by
the Company.
(c) For purposes of the Plan, "Employer" shall mean the Company and any
Affiliate which has adopted the Plan with the approval of the Chairman
of the Board of Directors and Chairman of the board of directors of
the Affiliate (such an Affiliate is referred to hereinafter as a
"Participating Affiliate"). As a condition to participating in the
Plan, such Affiliate shall authorize the Chairman of the Board of
Directors and the Administrator to act for it in all matters arising
under the Plan and shall agree to comply with such other terms and
conditions as may be imposed by the Chairman of the Board of
Directors. Where the context requires in respect of the liability for
the payment of any benefit to an employee or beneficiary thereof, the
term "Employer" shall mean the Employer employing or who employed such
employee. Unless otherwise defined herein, all defined terms shall
have the same meaning as provided under the Savings & Investment Plan.
All corporate officers and other administrative personnel referred to
herein refer to officers and administrative personnel of the Company.
(d) Notwithstanding Section 6(a) hereof, in the event of any
dispute, claim, or controversy (hereinafter referred to as a
"Grievance") between an employee who is eligible to elect to receive
the benefits provided under this Plan and the
8
<PAGE> 9
Employer with respect to the payment of benefits to such employee 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 6(d).
(1) Arbitration shall be the sole and exclusive remedy to redress any
Grievance.
(2) The arbitration decision shall be final and binding, and a judgment on
the arbitration award may be entered in any court of competent
jurisdiction and enforcement may be had according to its terms.
(3) The arbitration shall be conducted by the American Arbitration
Association with the Commercial Arbitration Rules of the American
Arbitration Association and expenses of the arbitrators and the
American Arbitration Association shall borne by the Company. Neither
the Company nor such employee shall be entitled to attorneys' fees,
expert witness fees, or other expenses expended in the course of such
arbitration or the enforcement of any award rendered thereunder.
(4) The place of the arbitration shall be the offices of the American
Arbitration Association in the Detroit Metropolitan area, Michigan.
(5) The arbitrator(s) shall not have the jurisdiction or authority
to change any of the provisions of this Plan by alteration of,
addition to, or subtraction from the terms thereof. The
arbitrator(s)' sole authority shall be to apply any terms and
conditions of this Plan. Since arbitration is the exclusive
remedy with respect to any Grievance, no employee 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 employee or the Company
with respect to any Grievance which is arbitrable as herein set forth.
9
<PAGE> 10
(6) The arbitration provisions shall, with respect to any
Grievance, survive the termination of this Plan.
SECTION 7 - AMENDMENT AND DISCONTINUANCE
The Company expects to continue this Plan indefinitely, but reserves the right
to amend or discontinue the Plan. The Vice President - Human Resources, or,
should the Vice President - Human Resources become a Participant in this Plan,
the Manager - Human Resources Operations, shall review the Plan from time to
time and as part of such review is hereby directed and authorized to amend such
Plan to the extent necessary for ease of administration and/or to comply with
applicable federal and state laws. If the Plan should be amended or
discontinued, the Employer shall be liable for any benefits that have accrued
under this Plan (determined on the basis of each employee's presumed
termination of employment as of the date of such amendment or discontinuance)
as of the date of such action.
Any Participating Affiliate may as to itself withdraw from the Plan at any time
by action of the Chairman of its board of directors. In the event of the
dissolution, merger, consolidation or reorganization of a Participating
Affiliate, the Plan shall terminate as to such Participating Affiliate unless
the Plan is continued by a successor thereto (subject to the consent of the
Chairman of the Board of Directors).
10
<PAGE> 1
EXHIBIT 3L(*10.9)
THIRD RESTATEMENT OF
THE RETIREMENT REPARATION PLAN
FOR CERTAIN EMPLOYEES OF
THE DETROIT EDISON COMPANY
The Retirement Reparation Plan for Certain Employees of The Detroit Edison
Company (the "Plan"), established by The Detroit Edison Company (the "Company")
effective January 1, 1989, as amended and restated effective May 22, 1989, and
June 26, 1995, is hereby amended and restated as of January 1, 1996 by this
Third Restatement.
SECTION 1 - PURPOSE
The sole purpose of this Plan is to assure that all eligible persons who become
eligible to and do receive benefits under the Employees' Retirement Plan of The
Detroit Edison Company (the "Retirement Plan") will receive the same aggregate
dollar amount of benefits (after taking into account any benefits such persons
are eligible to receive under the Benefit Equalization Plan for Certain
Employees of The Detroit Edison Company (the "BEP")) as they would have
received under the Retirement Plan, but for the limitations on contributions
and benefits imposed from time to time by the compensation limitation of
Section 401(a)(17) of the Internal Revenue Code, whether such limitations
result solely from the application of Section 401(a)(17) of the Internal
Revenue Code or result from the combination of the application of Section
401(a)(17) of the Internal Revenue Code and the application of the limitations
on contributions and benefits imposed from time to time by Section 415 of the
Internal Revenue Code. This Plan is not intended to and shall not be construed
so as to provide any person receiving benefits under the Retirement Plan, the
BEP, if applicable, and this Plan, if applicable, with benefits in the
aggregate which are either larger or smaller than the benefit which would
result from the calculation made under the applicable provisions of the
Retirement Plan, and the BEP, if applicable, without giving effect to or
recognition of the contribution and benefit limitation provisions of Section
401(a)(17) of the Internal Revenue Code, whether such limitations result
solely from the application of Section 401(a)(17) of the Internal Revenue Code
or result from the combination of the application of Section 401(a)(17) of the
Internal Revenue Code and the application of the limitations on contributions
and benefits under Section 415 of the Internal Revenue Code. The benefit
provided under this Plan to any person shall be separate from and in addition
to any benefit provided under the Retirement Plan, the BEP, if applicable, and
any other plan or program maintained by the Company.
<PAGE> 2
SECTION 2 - ELIGIBILITY
Each retired employee of the Company and, as applicable, the spouse or
beneficiary of a former Company employee whose benefits under the Retirement
Plan are limited by the provisions set forth therein to conform to Section
401(a)(17) of the Internal Revenue Code shall be eligible for the benefits
provided by this Plan. In no event shall a person who is not entitled to
benefits under the Retirement Plan be eligible for any benefits under this
Plan.
SECTION 3 - AMOUNT OF BENEFITS
The benefits payable under this Plan shall equal the excess, if any, of:
(a) the aggregate benefits which would have been paid to such retired
employee, an employee's spouse or beneficiary under the Retirement
Plan and the BEP, if applicable, if the provisions of such plans were
administered and benefits paid without regard to either the
limitations on contributions and benefits imposed by the compensation
limitation of Section 401(a)(17) of the Internal Revenue Code, or the
special benefit limitations added to the Retirement Plan to conform it
to Section 415 of the Internal Revenue Code, over
(b) the aggregate benefits which are payable to such retired employee, an
employee's spouse or beneficiary under the Retirement Plan and the
BEP, if applicable.
SECTION 4 - PAYMENT OF BENEFITS
(a) Payment of benefits under this Plan shall be made coincident with the
payment of benefits under the Retirement Plan or as soon as practicable
thereafter.
(b) In the event an employee receives an assessment of income taxes from the
Internal Revenue Service which treats any amount payable under this Plan
as being includible in such employee's gross income prior to the actual
payment of such amount to such employee, the Company shall pay an amount
equal to such income taxes to the employee within 30 days after written
notice from such employee of such assessment. The amount of income
taxes paid to the employee hereunder shall be considered an advance of
and shall reduce the benefits ultimately paid to the employee under this
Plan.
(c) Each payment under this Plan shall be reduced by any federal, state,
or local taxes which the Detroit Edison Company determines should be
withheld from such payment.
2
<PAGE> 3
(d) Benefits under this Plan shall be payable to or in respect of a
Company's former employees solely from the general assets of such
Company; provided, however, that no provision of the Plan shall
preclude a Company from segregating assets which are intended to be a
source for payment of benefits under the Plan. Each participant in
this Plan shall have the status of an unsecured creditor of the
Company. This Plan constitutes a promise by the Company to make
benefit payments in the future. It is intended that this Plan be
unfunded for tax purposes and for purposes of Title I of ERISA and
that this Plan shall remain unfunded during the entire period of its
existence. The Company intends that this Plan be maintained primarily
for a select group of management or highly compensated employees.
SECTION 5 - RIGHTS OF EMPLOYEES
Except to the extent provided in Section 7 herein below, no employee or an
employee's spouse or beneficiary shall at any time have any vested right to
receive the benefits provided by this Plan. The employee, employee's spouse or
beneficiary is merely a general creditor of the Company and the obligation of
the Company hereunder is purely contractual and shall not be funded or secured
in any way.
The right of an employee, employee's spouse or beneficiary to payment of any
benefit hereunder shall not be anticipated, alienated, sold, assigned,
transferred, pledged, encumbered, attached, or garnished by an employee, an
employee's spouse or beneficiary, or creditors of an employee and shall not be
subject to garnishment, execution, attachment, or similar process. Any
attempted anticipation, sale, assignment, transfer, pledge, levy, encumbrance,
attachment, garnishment or similar process shall be null and void and without
effect.
SECTION 6 - ADMINISTRATION; ARBITRATION
(a) This Plan shall be administered by the Organization and Compensation
Committee of the Board of Directors (the "Administrator") as an unfunded
plan which is not intended to meet the qualification requirements of
Section 401 of the Internal Revenue Code. The Administrator's decisions
in all matters involving the interpretation and application of this Plan
shall be conclusive.
(b) The Plan shall at all times be maintained by the Company and
administered by the Administrator as a plan wholly separate from the
Retirement Plan, the BEP and any other plan or program maintained by the
Company.
(c) For purposes of the Plan, "Company" shall mean The Detroit Edison
Company and any Controlled Group Member which has adopted the Plan
with the approval of the Chairman of the Board of Directors and the
Chairman of the
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<PAGE> 4
board of directors of the Controlled Group Member. As a condition to
participating in the Plan, such Controlled Group Member shall
authorize the Chairman of the Board of Directors and the Administrator
to act for it in all matters arising under the Plan and shall agree to
comply with such other terms and conditions as may be imposed by the
Chairman of the Board of Directors. Where the context requires in
respect of the liability for the payment of any benefit to any former
employee or spouse or beneficiary thereof, the term "Company" shall
mean The Detroit Edison Company or such other Controlled Group Member
who employed the employee. Unless otherwise defined herein, all
defined terms shall have the same meaning as provided under the
Retirement Plan. All corporate officers and other administrative
personnel referred to herein refer to officers and administrative
personnel of The Detroit Edison Company.
(d) Notwithstanding Section 6(a) hereof, in the event of any dispute,
claim, or controversy (hereinafter referred to as a "Grievance")
between an employee 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 employee 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 6(d).
(1) Arbitration shall be the sole and exclusive remedy to
redress any Grievance.
(2) The arbitration decision shall be final and binding,
and a judgment on the arbitration award may be
entered in any court of competent jurisdiction and
enforcement may be had according to its terms.
(3) The arbitration shall be conducted by the American
Arbitration Association with the Commercial Arbitration
Rules of the American Arbitration Association and
expenses of the arbitrators and the American
Arbitration Association shall be borne by the Company.
Neither the Company nor such employee shall be entitled
to attorneys' fees, expert witness fees, or any other
expenses expended in the course of such arbitration or
the enforcement of any award rendered thereunder.
(4) The place of the arbitration shall be the offices of
the American Arbitration Association in the Detroit
Metropolitan area, Michigan.
(5) The arbitrator(s) shall not have the jurisdiction or
authority to change any of the provisions of this Plan
by alteration of,
4
<PAGE> 5
addition to, or subtraction from the terms thereof.
The arbitrator(s)' sole authority shall be to apply
any terms and conditions of this Plan. Since
arbitration is the exclusive remedy with respect to
any Grievance, no employee 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 employee or the Company
with respect to any Grievance which is arbitrable as
herein set forth.
(6) The arbitration provisions shall, with respect to any
Grievance, survive the termination of this Plan.
SECTION 7 - AMENDMENT AND DISCONTINUANCE
The Detroit Edison Company expects to continue this Plan indefinitely, but
reserves the right to amend or discontinue it. The Vice President, Human
Resources, or, should the Vice President, Human Resources, become a Participant
in this Plan, the Manager, Human Resources Operations, shall review the Plan
from time to time and as part of such review is hereby directed and authorized
to amend such Plan to the extent necessary for ease of administration and/or to
comply with applicable federal and state laws. If the Plan should be amended
or discontinued, the Company shall be liable for any benefits that have accrued
under this Plan (determined on the basis of each employee's presumed
termination of employment as of the date of such amendment or discontinuance)
as of the date of such action. Any Controlled Group Member which has adopted
the Plan may as to itself withdraw from the Plan at any time by action of the
Chairman of its board of directors. In the event of the dissolution, merger,
consolidation or reorganization of a Company, the Plan shall terminate as to
such Company unless the Plan is continued by a successor thereto (subject to
the consent of the Chairman of the Board of Directors).
5
<PAGE> 1
EXHIBIT 3L(*10.10)
THIRD RESTATEMENT OF
THE BENEFIT EQUALIZATION PLAN
FOR CERTAIN EMPLOYEES OF
THE DETROIT EDISON COMPANY
The Benefit Equalization Plan for Certain Employees of The Detroit Edison
Company (the "Plan"), established by The Detroit Edison Company (the "Company")
effective March 1, 1978, as amended and restated effective May 22, 1989 and
June 26, 1995, is hereby amended and restated as of January 1, 1996, by this
Third Restatement.
SECTION 1 - PURPOSE
The sole purpose of this Plan is to assure that all eligible persons who become
eligible to and do receive benefits under the Employees' Retirement Plan of The
Detroit Edison Company (the "Retirement Plan") will receive the same dollar
amount of benefits as they would have received but for the limitations on
contributions and benefits imposed from time to time solely by Section 415 of
the Internal Revenue Code. This Plan is not intended to and shall not be
construed so as to provide any person receiving benefits under the Retirement
Plan and, where applicable, this Plan with benefits in the aggregate which are
either larger or smaller than the benefit which would result from the
calculation made under the applicable provisions of the Retirement Plan without
giving effect to or recognition of solely the benefit limitation provisions of
Section 415 of the Internal Revenue Code. The benefit under this Plan provided
to any person shall be separate from and in addition to any benefit provided
under the Retirement Plan or any other plan or program maintained by the
Company.
SECTION 2 - ELIGIBILITY
Each retired employee of the Company and, as applicable, the spouse or
beneficiary of a former Company employee whose benefits under the Retirement
Plan are limited by the provisions set forth therein to confom to Section 415
of the Internal Revenue Code shall be eligible for the benefits provided by
this Plan. In no event shall a person who is not entitled to benefits under
the Retirement Plan be eligible for any benefits under this Plan.
1
<PAGE> 2
SECTION 3 - AMOUNT OF BENEFITS
The benefits payable hereunder shall equal the excess, if any, of:
(a) the benefits which would have been paid to a retired employee, such
employee's spouse or beneficiary under the Retirement Plan if the
provisions of such plan were administered and benefits paid without
regard solely to the special benefit limitations added to such plan to
conform it to Section 415 of the Internal Revenue Code, over
(b) the benefits which would be otherwise payable to such retired
employee, such employee's spouse or beneficiary under the Retirement
Plan taking into account solely the special benefit limitations added
to such plan to conform it to Section 415 of the Internal Revenue
Code.
SECTION 4 - PAYMENT OF BENEFITS; AMENDMENTS
(a) Payment of benefits under this Plan shall be made coincident with the
payment of benefits under the Retirement Plan or as soon as
practicable thereafter.
(b) In the event an employee receives an assessment of income taxes from
the Internal Revenue Service which treats any amount payable under
this Plan as being includible in such employee's gross income prior to
the actual payment of such amount to such employee, the Company shall
pay an amount equal to such income taxes to such employee within
thirty days after written notice from such employee of such
assessment. The amount of income taxes paid to the employee hereunder
shall be considered an advance of and shall reduce the benefits
ultimately paid to the employee under this Plan.
(c) Each payment under this Plan shall be reduced by any federal, state,
or local taxes which the Detroit Edison Company determines should be
withheld from such payment.
(d) Benefits under this Plan shall be payable to or in respect of a
Company's former employees solely from the general assets of such
Company; provided, however, that no provision of the Plan shall
preclude a Company from segregating assets which are intended to be a
source for payment of benefits under the Plan. Each participant in
this Plan shall have the status of a general unsecured creditor of
the Company. This Plan constitutes a promise by the Company to make
benefit payments in the future. It is intended that this Plan be
unfunded for tax purposes
2
<PAGE> 3
and that this Plan shall remain unfunded during the entire
period of its existence. The Company intends to maintain this
Plan similarly for a select group of management or highly
compensated employees.
SECTION 5 - RIGHTS OF EMPLOYEES
Except as to the extent provided in Section 7 herein, no employee or an
employee's spouse or beneficiary shall at any time have any vested right to
receive the benefits provided by this Plan. The rights of any participant to
receive benefits under this Plan are not subject in any manner to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance, attachment or
garnishment by such participant, the creditors of such participant, such
participant's spouse or such participant's beneficiary.
SECTION 6 - ADMINISTRATION; ARBITRATION
(a) This Plan shall be administered by the Organization and Compensation
Committee of the Board of Directors (the "Administrator") as an
unfunded plan which is not intended to meet the qualification
requirements of Section 401 of the Internal Revenue Code. The
Administrator's decisions in all matters involving the interpretation
and application of this Plan shall be conclusive.
(b) The Plan shall at all times be maintained by the Company and
administered by the Administrator as a plan wholly separate from the
Retirement Plan and any other plan or program maintained by the
Company.
(c) For purposes of the Plan, "Company" shall mean The Detroit Edison
Company and any Controlled Group Member which has adopted the Plan
with the approval of the Chairman of the Board of Directors and the
Chairman of the board of directors of the Controlled Group Member. As
a condition to participating in the Plan, such Controlled Group Member
shall authorize the Chairman of the Board of Directors and the
Administrator to act for it in all matters arising under the Plan and
shall agree to comply with such other terms and conditions as may be
imposed by the Chairman of the Board of Directors. Where the context
requires in respect of the liability for the payment of any benefit to
any former employee or spouse or beneficiary thereof, the term
"Company" shall mean The Detroit Edison Company or such other
Controlled Group Member who employed the employee. Unless otherwise
defined herein, all defined terms shall have the same meaning as
provided under the Retirement Plan. All corporate officers and other
3
<PAGE> 4
administrative personnel referred to herein refer to officers and
administrative personnel of The Detroit Edison Company.
(d) Notwithstanding Section 6(a) hereof, in the event of any dispute,
claim, or controversy (the "Grievance") between an employee whose
eligible to elect to receive the benefits provided under this Plan and
the Company with respect to the payment of benefits to such employee
under this Plan, the computation of benefits under this Plan, or any
of the terms and conditions of this Plan, such Grievance shall be
resolved by arbitration and in accordance with this Section 6(d).
(1) Arbitration shall be the sole and exclusive remedy to redress any
Grievance.
(2) The arbitration decision shall be final and binding, and a
judgment on the arbitration award may be entered in any court of
competent jurisdiction and enforcement may be had according to
its terms.
(3) The arbitration shall be conducted by the American Arbitration
Association in accordance with the Commercial Arbitration Rules
of the American Arbitration Association and expenses of the
arbitrators and the American Arbitration Association shall be
borne by the Company. Neither the Company nor such employee
shall be entitled to attorneys' fees, expert witness fees, or
other expenses expended in the course of such arbitration or the
enforcement of any award rendered thereunder.
(4) The place of the arbitration shall be the offices of the American
Arbitration Association in the Detroit Metropolitan area,
Michigan.
(5) The arbitrator(s) shall not have the jurisdiction or authority to
change any provisions of this Plan by alteration of, addition to,
or subtraction from the terms thereof. The arbitrator(s)' sole
authority shall be to apply any terms and conditions of this
Plan. Since arbitration is the exclusive remedy with respect to
any Grievance, no employee eligible to receive benefits provided
under this Plan has the right to resort to any federal court,
state court, local court, or administrative agency concerning
breeches of any terms and provisions hereunder, and the decision
of the arbitrator(s) shall be a complete defense to any suit,
action, or proceeding instituted in any federal court, state
court, local court, or administrative agency by such employee or
the Company with respect to any Grievance which is arbitrable as
herein set forth.
(6) The arbitration provision shall, with respect to any Grievance,
survive the termination of this Plan.
4
<PAGE> 5
SECTION 7 - AMENDMENT AND DISCONTINUANCE
The Detroit Edison Company expects to continue this Plan indefinitely, but
reserves the right to amend or discontinue it. The Vice President, Human
Resources, or, should the Vice President, Human Resources, become a Participant
in this Plan, the Manager, Human Resources Operations, shall review the Plan
from time to time and as part of such review is hereby directed and authorized
to amend such Plan to the extent necessary for ease of administration and/or to
comply with applicable federal and state laws. If the Plan should be amended
or discontinued, the Company shall be liable for any benefits that have accrued
under this Plan (determined on the basis of each employee's presumed
termination of employment as of the date of such amendment or discontinuance)
as of the date of such action. Any Controlled Group Member which has adopted
the Plan may as to itself withdraw from the Plan at any time by action of the
Chairman of its board of directors. In the event of the dissolution, merger,
consolidation or reorganization of a Company, the Plan shall terminate as to
such Company unless the Plan is continued by a successor thereto (subject to
the consent of the Chairman of the Board of Directors).
5
<PAGE> 1
EXHIBIT 3L(*10.18)
THIRD RESTATEMENT OF
THE DETROIT EDISON COMPANY
MANAGEMENT SUPPLEMENTAL BENEFIT PLAN
The Detroit Edison Company Management Supplemental Benefit Plan (the "Plan"),
established by The Detroit Edison Company (the "Company") effective July 24,
1989, as amended and restated effective January 22, 1990 and June 26, 1995, is
hereby amended and restated as of January 1, 1996 by this Third Restatement.
PURPOSE
The Plan is designed to supplement pension benefits for eligible management
employees. The Plan has the objective of making the Company's retirement
program more competitive within the electric utility industry and general
industry, which will facilitate the attraction and retention of management
employees.
DEFINITION
AVERAGE FINAL COMPENSATION. Equals one-fifth of normal pay during the 260
weeks of Company service that results in the highest average, calculated
without regard to any limitation imposed by Section 401(a)(17) of the Internal
Revenue Code.
AWARDED SERVICE. Years of service that may be imputed to an otherwise eligible
Plan participant by the Organization and Compensation Committee ("Committee")
of the Board of Directors, having taken into account the value to the Company
of such participant's prior experience.
COMPANY. The Detroit Edison Company and any Controlled Group Member which has
adopted the Plan with the approval of the Chairman of the Board of Directors
and the Chairman of the board of directors of the Controlled Group Member. As
a condition to participating in the Plan, such Controlled Group Member shall
authorize the Chairman of the Board of Directors to act for it in all matters
arising under the Plan and shall agree to comply with such other terms and
conditions as may be imposed by the Chairman of the Board of Directors. Where
the context requires in respect of the liability for the payment of any benefit
to an eligible participant or beneficiary thereof, the term "Company" shall
mean The Detroit Edison Company or such other Controlled Group Member employing
or who employed such employee. Unless otherwise defined herein, all defined
terms shall have the same meaning as provided under the Retirement Plan. All
corporate officers and other
1
<PAGE> 2
administrative personnel referred to herein refer to officers and
administrative personnel of The Detroit Edison Company.
COMPANY SERVICE. All years of service with the Company calculated to the
nearest month.
EXECUTIVE POST-EMPLOYMENT INCOME ARRANGEMENT. Individual arrangements that
were entered into with certain executives upon initial employment with the
Company. The arrangements may provide for additional benefits upon retirement.
KEY EMPLOYE DEFERRED COMPENSATION PLAN. The Key Employe Deferred Compensation
Plan initiated in 1964 which provides a supplemental pension benefit to certain
management employees. The Key Employe Deferred Compensation Plan is sponsored
by Detroit Edison for eligible employees.
CERTAIN MANAGEMENT OR HIGHLY-COMPENSATED EMPLOYEES. An employee of a Company,
other than The Detroit Edison Company, who is specifically designated by
written order of the Committee as a member of management eligible to
participate in the Plan, and who is a member of a select group of management or
highly-compensated employees of the Company within the meaning of ERISA Section
201(2). An employee's designation as a Certain Management or Highly
Compensated Employee shall terminate, however, on the date the Committee by
written order terminates such employee's designation for participation in the
Plan.
NORMAL PAY. The employee's salary from the Company for a standard forty-hour
work week calculated without regard to any limitation imposed by Section
401(a)(17) of the Internal Revenue Code including amounts deferred by the
Employe under the Company's qualified and non-qualified savings plans. It does
not include any bonuses, special pay, or premium for overtime work.
RETIREMENT PLAN. The Employes' Retirement Plan of The Detroit Edison Company
("Detroit Edison"). The Retirement Plan is a defined benefit pension plan
sponsored by Detroit Edison for eligible employees.
RETIREMENT ALLOWANCE FACTOR. The multiplier used in the basic formula of the
Retirement Plan.
ELIGIBILITY
Eligibility to participate in this Plan is determined no later than the latest
to occur of:
(1) 90 days from the date hereof; or
2
<PAGE> 3
(2) 90 days subsequent to an otherwise eligible participant's 55th
birthday; or
(3) In the case of an otherwise eligible participant who does not
have at least 10 years of Company service at age 55, 90 days
subsequent to the otherwise eligible participant's having 10
years of Company service.
Participation in the Plan is limited to those management employees who
(1) Are members of Management Council (pursuant to OR3, Management
Groups, as may be amended from time to time) at the time of
termination from the Company (or death while actively employed
by the Company), or, with respect to management employees of a
Company other than The Detroit Edison Company, are Certain
Management or Highly Compensated Employees at the time of
termination from the Company (or death while actively employed
by the Company); and
(2) Are not personally eligible to receive a benefit from the Key
Employe Deferred Compensation (KEDC) Plan although a court of
competent jurisdiction may have recognized spousal rights; and
(3) Do not have an effective Executive Post-Employment Income
Arrangement; and
(4) At the time of termination from the Company (or death while
actively employed), are at least 55 years of age and have at
least 10 years of Company service.
Employes who are eligible to receive a benefit from KEDC or who have entered
into Post-Employment Income Arrangements with the Company may elect to
participate in this Plan in accordance with the first paragraph of this section
by filing an election to waive any rights to a benefit from KEDC and/or any
rights under a Post-Employment Income Arrangement with the Vice President-Human
Resources, who will provide an election form upon request.
TARGET PERCENTAGE OF AVERAGE FINAL COMPENSATION
Payments from the Plan are based upon the calculated target percentage of
average final compensation. The target percentage of average final
compensation is determined by years of Company service and awarded service, if
any, and by the management group in which the participant is a member at the
time of termination from the Company (or death while actively employed by the
Company) as specified in Exhibit A.
3
<PAGE> 4
Participants awarded service under the Plan must certify any retirement income
expected or being received from a previous employer. Payments from the Plan to
participants with awarded service will be reduced by the non-contributory
portion of any retirement income expected or being received from a previous
employer.
Payments from the Plan will be reduced by any KEDC spousal payments required by
a court of competent jurisdiction. Payments from the Plan may also be affected
by the employee's age at termination (see Early Retirement) and the payment
option selected by the employee (see Payment Options).
Payments from the Plan are not payable until the participant terminates
employment with the Company and all Controlled Group Members (by death or
otherwise), and references in the following provisions of the Plan to
"terminating employment" or "employment termination" or similar provisions
shall mean termination of employment with the Company and all Controlled Group
Members.
EARLY RETIREMENT
The Plan provides for an unreduced target percentage for those terminating
employment at age 60 or older. A reduced or adjusted target percentage is
provided for those terminating employment (including death) who are at least
age 55 but prior to age 60. The early retirement adjustment schedule is as
follows:
<TABLE>
<CAPTION>
AGE AT EARLY RETIREMENT
TERMINATION ADJUSTMENT PERCENTAGE
<S> <C>
55 50%
56 60%
57 70%
58 80%
59 90%
60 or older 100%
</TABLE>
Age at termination is calculated to the nearest whole month and the early
retirement adjustment percentage is determined accordingly.
PAYMENT OPTIONS
At the time of employment termination, an eligible employee must elect one of
the following payment options: (a) Guaranteed Term Plus Life, (b)
Actuarial-Adjusted Life with a 100%
4
<PAGE> 5
Joint and Survivor Benefit and (c) Actuarial-Adjusted Life with a 50% Joint and
Survivor Benefit. In the event that an employee dies during active employment,
and at the time of death was eligible for a benefit as provided herein, the
payment option is deemed to be Guaranteed Term Plus Life.
GUARANTEED TERM PLUS LIFE
If the employee elects the Guaranteed Term Plus Life payment option, the
employee, at the time of employment termination, must also elect a survivor
benefit of either monthly payments or an adjusted lump sum payment. In the
event that such an election is not made by the employee, or in the event that
the employee dies during active employment and at the time of death was
eligible for a Plan benefit as provided herein, the survivor benefit is assumed
to be the adjusted lump sum payment.
The Guaranteed Term Plus Life payment option provides for a minimum of 15 years
of payments to the employee or, if the employee lives beyond the 15-year
period, the payments continue to be made to the employee for the life of the
employee.
If the employee elects the monthly payment survivor benefit and dies prior to
the end of the 15-year period, payments will continue to be made to the
employee's beneficiary or estate for the balance of the 15-year period. At the
end of this 15-year period, all payments cease and liability of the Company
under the Plan is terminated.
If the employee elects the lump sum payment survivor benefit and dies prior to
the end of the 15-year period, an adjusted lump sum payment is made to the
employee's designated beneficiary or estate. The adjusted lump sum payment is
determined by a standard annuity calculation where the adjusted lump sum is the
present worth of the remaining monthly benefits in the 15-year period. The
methodology and other relevant factors for determining the amount of the
adjusted lump sum payment are provided in Exhibit B. Upon payment of the lump
sum payment, all payments cease and liability of the Company under the Plan is
terminated.
ACTUARIAL-ADJUSTED LIFE WITH A 100% JOINT AND SURVIVOR BENEFIT
This option provides for the actuarial equivalent to the benefit payment under
the Guaranteed Term Plus Life option. Upon the death of the employee and the
designated beneficiary, all payments cease and the liability of the Company
under the Plan is terminated. The actuarial equivalent benefit is provided for
the life of the employee and upon the death of the employee, 100% of the
benefit is provided to the employee's designated beneficiary for the duration
of the beneficiary's life. If the employee's designated beneficiary should die
prior to
5
<PAGE> 6
the employee, payments continue from the life of the employee and upon the
death of the employee all payments cease and liability of the Company under the
Plan is terminated. If the employee and designated beneficiary are the same
age, the actuarial equivalent benefit equals 97.94% of the Guaranteed Term Plus
Life benefit.
If the beneficiary is younger than the employee, this percentage is reduced by
1.2% for each 12 full months of difference in age. If the beneficiary is older
than the employee, this percentage is increased 1.2% for each 12 full months in
difference in age up to a maximum of 100%.
ACTUARIAL-ADJUSTED LIFE WITH A 50% JOINT AND SURVIVOR BENEFIT
This option provides for the actuarial equivalent to the benefit payable under
the Guaranteed Term Plus Life option. Upon the death of the employee and the
designated beneficiary, all payments cease and the liability of the Company
under the Plan is terminated. The actuarial equivalent benefit is provided for
the life of the employee and upon the death of the employee, 50% of the benefit
is provided to the employee's designated beneficiary for the duration of the
beneficiary's life. If the employee's designated beneficiary should die prior
to the employee, payments continue for the life of the employee and upon the
death of the employee all payments cease and liability of the Company under the
Plan is terminated. If the employee and designated beneficiary are the same
age, the actuarial equivalent benefit equals 107.72% of the Guaranteed Term
Plus Life benefit. If the beneficiary is younger than the employee, this
percentage is reduced by 1% for each 12 full months of difference in age. If
the beneficiary is older than the employee, there is no adjustment to the
percentage. If the employee does not designate a beneficiary, the actuarial
equivalent benefit equals 107.72% of the Guaranteed Term Plus Life benefit, and
upon the death of the employee all payments cease and the liability of the
Company under the Plan is terminated.
PAYMENT CALCULATION
Monthly payments from the Plan are determined as follows:
STEP 1. DETERMINE GROSS TARGET AMOUNT
The gross target amount results from multiplying the target percentage by
average final compensation (see Exhibit A to determine the target
percentage).
STEP 2. DETERMINE RETIREMENT PLAN BENEFIT
6
<PAGE> 7
The Retirement Plan benefit results from multiplying the retirement
allowance factor by average final compensation and by Company service,
calculated for purposes hereof, without regard to any limitations imposed
by Section 401(a)(17) or Section 415 of the Internal Revenue Code.
7
<PAGE> 8
STEP 3. DETERMINE BASE ANNUAL TARGET BENEFIT AMOUNT
The base annual target benefit amount results from subtracting the
Retirement Plan benefit from the gross target amount.
STEP 4. DETERMINE ADJUSTED ANNUAL TARGET BENEFIT AMOUNT
The adjusted annual target benefit amount results from multiplying the
base annual target benefit amount by the early retirement adjustment
percentage (see page 4 to determine the early retirement adjustment
percentage).
STEP 5. DETERMINE MONTHLY TARGET BENEFIT AMOUNT UNDER THE
GUARANTEED TERM PLUS LIFE PAYMENT OPTION
The monthly target benefit amount under the Guaranteed Term Plus Life
payment option is determined by dividing the adjusted annual target
benefit amount by 12.
STEP 6. ACTUARIAL-ADJUSTED PAYMENT OPTION
If an actuarial-adjusted payment option is selected, the actuarial
adjustment is applied to the monthly target benefit amount under the
Guaranteed Term Plus Life payment option.
Exhibit C displays examples of the Plan payment calculation procedure.
In the event an employee receives an assessment of income taxes from the
Internal Revenue Service which treats any amount under this Plan as includible
in such employee's gross income prior to payment of such amount to such
employee, the Company shall pay an amount equal to such income taxes to such
employee within 30 days after receipt of written notice from such employee
about such assessment. The base annual target benefit amount (Step 3) shall be
reduced by an amount equal to such income taxes and Steps 4, 5 and 6 shall be
reduced accordingly.
Each payment under this Plan shall be reduced by any federal, state or local
taxes which The Detroit Edison Company determines should be withheld from such
payment.
SCHEDULE OF PAYMENTS
Plan payments, if any, are made to the employee or to the designated
beneficiary on a monthly basis. The schedule will follow the provisions for
payment under the Retirement
8
<PAGE> 9
Plan. The accompanying examples show the effect of Retirement Plan benefits at
different times.
BENEFICIARY DESIGNATION
Each eligible participant may name any beneficiary to whom payments under the
Plan are to be paid in case of the employee's death. Each designation will
revoke all prior designations by the employee and shall be on a form prescribed
by The Detroit Edison Company and will be effective only when filed by the
employee with the Treasurer. In the absence of any such designation, payments
due shall be paid to the employee's estate.
TAXATION
The Company makes no representation as to the tax consequences of individual
payment options. Plan participants are urged to consult tax advisors of their
choice for information and advice.
NON-SECURED PROMISE; AMENDMENTS
Eligible participants have the status of general unsecured creditors of the
Company. This Plan constitutes a promise by the Company to make benefit
payments in the future. The Company intends that this Plan be unfunded for tax
purposes and for purposes of Title I of ERISA. The Company intends that this
Plan be maintained primarily for a select group of management or highly
compensated employees.
Payments as they become due under the Plan to or in respect of a Company's
former employees shall be paid by such Company from its general assets;
provided, however, that no provision of the Plan shall preclude a Company from
segregating assets which are intended to be a source for payment of benefits
under the Plan.
The Detroit Edison Company reserves the right to amend, modify, or discontinue
this Plan at any time; provided, however, that no such amendment, modification,
or termination shall affect the rights of participants or beneficiaries who are
receiving or are immediately eligible to receive benefits from this Plan at the
time of such amendment, modification, or termination.
Any Controlled Group Member which has adopted the Plan may as to itself
withdraw from the Plan at any time by action of the Chairman of its board of
directors. In the event of dissolution, merger, consolidation or
reorganization of a Company, the Plan shall terminate
9
<PAGE> 10
as to such Company unless the Plan is continued by a successor thereto (subject
to the consent of the Chairman of the Board of Directors).
10
<PAGE> 11
ADMINISTRATION; ARBITRATION
The Vice President-Human Resources is responsible for the administration of the
Plan. The Vice President-Human Resources has the authority to interpret the
provisions of the Plan and prescribe any regulations relating to its
administration. The decisions of the Vice President-Human Resources with
respect thereto shall be conclusive. The Vice President-Human Resources shall
review the Plan from time to time and as part of such review is hereby directed
and authorized to amend such Plan to the extent necessary for ease of
administration and/or to comply with applicable federal and state laws.
The Treasurer of the Company shall be responsible for the administration of
benefits under the Plan.
Notwithstanding any provision in this Plan to the contrary, in the event of any
dispute, claim or controversy (hereinafter referred to as a "Grievance")
between an employee who is eligible to receive benefits under this Plan and the
Company with respect to the payment of benefits to such employee under this
Plan, the computation of benefits under this Plan, or any of the terms or
conditions of this Plan, such Grievance shall be resolved by arbitration.
Arbitration shall be the sole exclusive remedy to redress any Grievance. 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. The arbitration shall be
conducted by American Arbitration Association in accordance with the Commercial
Arbitration Rules of the American Arbitration Association and expenses of the
arbitrator(s) and the American Arbitration Association shall be borne by the
Company. Neither the Company nor such employee shall be entitled to attorneys'
fees, expert witness fees, or other expenses expended in the course of such
arbitration or the enforcement of any award rendered thereunder. The place of
the arbitration shall be the offices of the American Arbitration Association in
the Detroit Metropolitan area, Michigan. The arbitrator(s) shall not have the
jurisdiction or authority to change any of the provisions of this Plan by
alteration of, addition to, or subtraction from the terms thereof. The
arbitrator(s)' sole authority shall be to apply any terms and conditions of this
Plan. Since arbitration is the exclusive remedy with respect to any Grievance,
no employee eligible to receive benefits 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 employee or the Company with respect to any Grievance which is
arbitrable as herein set forth. The arbitration provisions shall, with respect
to any Grievance, survive the termination of this Plan.
11
<PAGE> 12
NON-ALIENABILITY AND NON-TRANSFERABILITY
The right of a participant, participant's spouse or beneficiary to payment of
any benefit hereunder shall not be alienated, assigned, transferred, pledged or
encumbered and shall not be subject to execution, attachment or similar
process. No account shall be subject in any manner to alienation, sale,
transfer, assignment, pledge, encumbrance, charge, garnishment, execution or
levy of any kind, whether voluntary or involuntary, including but not limited
to any liability which is for alimony or other payments for the support of a
spouse or former spouse, or for any other relative of any employee. Any
attempted assignment, pledge, levy or similar process shall be null and void
and without effect.
12
<PAGE> 13
EXHIBIT A
TARGET PERCENTAGE
<TABLE>
<CAPTION>
Target Percentage
Management of Average Final Service
Group Compensation Index
---------- ----------------- -------
<S> <C> <C> <C>
1. Chairman of the Board 60% 25
President
Executive Vice President
Participants who are Certain Management
or Highly Compensated Employees designated
as being in Group 1 by the Committee
2. Senior Vice President 60% 30
Vice President
Participants who are Certain Management
or Highly Compensated Employees designated
as being in Group 2 by the Committee
3. Management Council members 55% 35
other than those included
in Groups 1 and 2 above and
Participants who are Certain Management
or Highly Compensated Employees, other
than those included in Groups 1 and 2 above,
designated by the Committee as eligible to
participate in the Plan
</TABLE>
If the sum of Company service and awarded service is greater than the
corresponding service index, the target percentage is increased by 0.5% for
each year of service above the index. If the sum of Company service and
awarded service is less than the corresponding service index, the target
percentage is reduced by 1% for each year of service below the index for
employees in Groups 1 and 2 and by 1.5% for each year of service below the
index for employees in Group 3.
Company service is calculated to the nearest whole month. Awarded service is
determined by the sole discretion of the Committee. The target percentage is
adjusted accordingly if the service index results in fractional years.
13
<PAGE> 14
EXHIBIT B
Table for Determining the Adjusted Lump Sum Payment Under the Guaranteed Term
Plus Life Payment Option (Per $1,000 of Adjusted Annual Target Benefit Amount)
<TABLE>
<CAPTION>
Remaining
Years Of
Guaranteed
Term
Payment
Interest Rate
6% 7% 8% 9% 10% 11% 12%
<S> <C> <C> <C> <C> <C> <C> <C>
15 $9,875 $9,271 $8,720 $8,216 $7,755 $7,332 $6,943
14 9,456 8,909 8,406 7,945 7,520 7,128 6,767
13 9,012 8,520 8,067 7,648 7,260 6,901 6,569
12 8,540 8,103 7,699 7,323 6,973 6,648 6,345
11 8,038 7,656 7,300 6,967 6,656 6,365 6,093
10 7,506 7,177 6,868 6,578 6,306 6,050 5,808
9 6,941 6,663 6,401 6,153 5,919 5,698 5,488
8 6,341 6,112 5,895 5,688 5,492 5,305 5,127
7 5,704 5,521 5,347 5,179 5,020 4,867 4,721
6 5,028 4,888 4,753 4,623 4,498 4,378 4,263
5 4,310 4,208 4,110 4,014 3,922 3,833 3,746
4 3,548 3,480 3,413 3,349 3,286 3,224 3,164
3 2,739 2,699 2,659 2,621 2,583 2,545 2,509
2 1,880 1,861 1,843 1,824 1,806 1,788 1,770
1 968 963 958 953 948 943 938
0 0 0 0 0 0 0 0
</TABLE>
NOTES: (1) Interest rate is determined by the current prime
interest rate of the NBD Bank less 2%.
(2) Apply linear interpolation for partial years
remaining in guaranteed term period and adjustments
for fractional interest rates.
(3) Exhibit B shows the information to perform a
standard annuity due calculation. It is the
present worth of a stream of monthly payments of
14
<PAGE> 15
$1,000/12 per month made at the end of the month
and continuing for the number of months remaining.
EXHIBIT B (CONTINUED)
The formula is:
Adjusted Lump Sum = Pmt x (1-(l + i) -n)/i
Where i is the NBD Bank Prime rate less 2% divided by 12 and n is the
number of months remaining. Pmt is $1,000/12 or $83.33.
15
<PAGE> 16
EXHIBIT C
Example 1
<TABLE>
<CAPTION>
Assumptions:
<S> <C>
Date of Termination: January 31, 1994
Age at Termination: 65 Years, 0 Months
Position: Vice President
Average Final Compensation: $180,000
Company Service & Awarded Service: 25 Years, 0 Months
Retirement Allowance Factor: .014
Payment Option: Guaranteed Term Plus Life
(Survivor benefit - monthly
payments)
</TABLE>
(Given the above, the target percentage is 55%)
Step 1: 55% x $180,000 = $99,000
Step 2: .014% x $180,000 x 25 = $63,000
Step 3: $99,000 - $63,000 = $36,000
Step 4: $36,000 x 100% = $36,000
Step 5: $36,000/12 = $3,000
Monthly payments of $3,000 will be made for 15 years, or for the life
of the employee if greater than 15 years.
EXAMPLE 1A
Assumptions listed for Example 1 apply with the exception of the
following:
Payment Option: Guaranteed Term Plus Life
(Survivor benefit - lump sum
payment)
NBD Bank 9%
Prime Interest Rate:
16
<PAGE> 17
Date of Employee's Death January 31, 1999
EXHIBIT C (CONTINUED)
Monthly payments of $3,000 are made for the life of the employee (see
Example 1). Upon the death of the employee (January 31, 1999), a lump
sum payment of $258,277.20 is made to the beneficiary (see Exhibit B).
EXAMPLE 2
<TABLE>
<CAPTION>
Assumptions:
<S> <C>
Date of Termination: January 31, 1994
Age at Termination: 58 Years, 6 Months
Position: Vice President
Average Final Compensation: $180,000
Company Service & Awarded Service: 25 Years, 6 Months
Retirement Allowance Factor: .014
Payment Option: Guaranteed Term Plus Life
(Survivor benefit-monthly payments)
</TABLE>
(Given the above, the target percentage is 55.5%)
Step 1: 55.5% x $180,000 = $99,900
Step 2: .014 x $180,000 x 25.5 x 88% = $56,549
Step 3: $99,900 - $56,549 = $43,351
Step 4: $43,351 x 85% = $36,848.35
Step 5: $36,848.35/12 = $3,070.70
Monthly payments of $3,070.70 will be made for 15 years, or for the
life of the employee if greater than 15 years.
17
<PAGE> 18
EXHIBIT C (continued)
EXAMPLE 2A
Assumptions listed for Example 2 apply with the exception of the
following:
<TABLE>
<S> <C>
Payment Option: Actuarial-Adjusted Life with a
100% Joint and Survivor Benefit
Employe/Beneficiary Beneficiary is two years younger
Age Difference: than the employee
Step 1 - Step 5: Same as Example 2. The monthly
benefit under the Guaranteed
Term Plus Life option is $3,070.70
Step 6: $3,070.70 x .9554 = $2,933.75
</TABLE>
Monthly payments of $2,933.75 are made for the life of the employee.
Upon the death of the employee, monthly payments of $2,933.75 are
made for the life of the designated beneficiary. Upon the death of
the designated beneficiary, all payments cease.
EXAMPLE 2B
Assumptions listed for Example 2A apply with the exception of the
following:
<TABLE>
<S> <C>
Payment Option: Actuarial-Adjusted Life with a 50%
Joint and Survivor Benefit
Step 1 - Step 5: Same as Example 2. The monthly
benefit under the Guaranteed
Term Plus Life option is $3,070.70
Step 6: $3.070.70 x 1.0572 = $3,246.34
</TABLE>
Monthly payments of $3,246.34 are made for the life of the employee.
Upon the death of the employee, monthly payments of $1,623.17
($3,246.34 x 50%) are made for the life of the designated
beneficiary. Upon the death of the designated beneficiary, all
payments cease.
18
<PAGE> 19
EXAMPLE 3
<TABLE>
<CAPTION>
Assumptions:
<S> <C>
Date of Termination: January 31,1994
Age at Termination: 58 Years, 6 Months
Position: Vice President
Average Final Compensation: $180,000
Company Service & Awarded Service: 14 Years, 0 Months
Retirement Allowance Factor: .014
Payment Option: Guaranteed Term Plus Life
(Survivor benefit - monthly
payments)
</TABLE>
(Given the above, the target percentage is 44%)
Step 1: 44% x $180,000 = $79,200
Step 2: $0 (Employe is ineligible for an
immediate benefit under the Retirement
Plan)
Step 3: $79,200 - $0 = $79,200
Step 4: $79,200 x 85% = $67,320
Step 5: $67,320/12 = $5,610.00
Monthly payments of $5,610.00 will be made until a benefit is
payable under the Retirement Plan. At that time the benefit payable
under the MSBP will be offset by an amount equivalent to the benefit
paid under the Retirement Plan (Step 6 - Option III assumed).
Step 6: .014 x $180,000 x 14 = $35,280
Step 7: $67,320 - $35,280 = $32,040
Step 8: $32,040/12 = $2,670.00
Monthly payments of $2,670.00 will be made for the years remaining of
the 15 years guaranteed (i.e., 8.5 years) or for the life of the
employee if greater.
19
<PAGE> 20
EXAMPLE 3A
Assumptions listed for Example 3 apply with the exception of the
following:
<TABLE>
<S> <C>
Age at Termination: 60
Employe/Beneficiary Beneficiary is two years younger
Age Difference: than the employee
Step 1 - Step 3: Same as Example 3.
Step 4: $79,200 x 100% = $79,200
Step 5: $79,200/12 = $6,600.00
</TABLE>
Monthly payments of $6,600.00 will be made to the employee until a
benefit is payable under the Retirement Plan. At that time the
benefit payable under the MSBP will be offset by an amount equivalent
to the benefit paid under the Retirement Plan (Step 6 / Option II
assumed).
<TABLE>
<S> <C>
Step 6: .014 x $180,000 x 14 x 88% = $31,046.40
Step 7: $79,200 - $31,046.40 = $48,153.60
Step 8: $48,153.60/12 = $4,012.80
</TABLE>
Monthly payments of $4,012.80 will be made for the years remaining of
the 15 years guaranteed (i.e., 10 years) or for the life of the
employee if greater.
20
<PAGE> 1
EXHIBIT 3L(*10.19)
THIRD RESTATEMENT OF
THE DETROIT EDISON COMPANY
PLAN FOR DEFERRING THE
PAYMENT OF DIRECTORS' FEES
The Detroit Edison Company Plan for Deferring the Payment of Directors'
Fees (the "Plan") established by The Detroit Edison Company (the "Company") as
amended and restated effective January 23, 1995, and June 26, 1995, is hereby
amended and restated as of January 1, 1996, by this Third Restatement.
SECTION I - PURPOSE
The purpose of the Plan is to enable each Director to defer all or a portion of
his or her fees for future services as a member of the Board of Directors or as
a member of any committee thereof.
SECTION II - ELIGIBILITY
Any Director of the Company who is not a Company employee or an employee of any
Affiliate shall be eligible to participate in the Plan. For purposes of the
Plan, "Affiliate shall mean the parent of the Company or any entity in which
the Company or the parent of the Company directly or indirectly beneficially
owns more than 50% of the voting securities.
SECTION III - ELECTION, MODIFICATION, AND TERMINATION PROCEDURES
Any Director wishing to participate in the Plan must file with the Corporate
Secretary of the Company at 2000 Second Avenue, Detroit, MI 48226, a written
Notice of Election on the form attached as Exhibit "A" to defer payment of all
or a portion of his or her Director's fees. Such an election to participate in
the Plan must be made prior to the beginning of the month for which fees are
payable. An effective election with respect to Directors' fees that have been
deferred under the terms of this Plan and fees that have already been earned
may not be modified or revoked. An effective election with regard to fees that
have not been deferred or earned may be modified by filing a new Notice of
Election or may be terminated by filing a Notice of Termination on the form
attached as Exhibit "B". A Director who shall have terminated an effective
election may thereafter file a new election covering a subsequent period.
1
<PAGE> 2
SECTION IV - ESTABLISHMENT AND ADMINISTRATION OF DEFERRED DIRECTORS'
FEE ACCOUNT
The amount of any Director's fees deferred in accordance with an election shall
be credited to a deferred Director's fee account maintained by the Company.
Such account shall remain a part of the general funds of the Company, and
nothing contained in this Plan shall be deemed to create a trust or fund of any
kind or create any fiduciary relationship.
As of the last day of each month for each Director participating in this Plan,
the deferred Director's fee account for such Director shall be adjusted as
follows:
(a) The account shall first be charged with any distributions made during
the month.
(b) The account balance shall then be credited with interest for that
month. Commencing January 1, 1995, such interest shall be computed
by multiplying the applicable portion of the account balance after
the adjustment provided for in Subsection (a) of this Section by a
fraction, the numerator of which is the 5-Year United States Treasury
Bond rate, as reported in The Wall Street Journal as of the last
business day of each month, and the denominator of which is 12.
(c) Finally, the account shall be credited with the amount, if any, of
Director's fees deferred during that month.
A separate record of deferred Director's fees and applicable interest shall be
maintained by the Company for each participant in this Plan.
SECTION V - PAYMENT OF DEFERRED DIRECTORS' FEES
Deferred fees shall be paid to a Director or, in the event of death, to his or
her designated beneficiary in accordance with the Notice of Election and
Beneficiary Designation forms that have been filed with the Corporate Secretary
of the Company. If a Director elects to receive payment of his or her deferred
fees in installments rather than in a lump sum, the payment period shall not
exceed ten years following the payment commencement date. The amount of any
installment payment shall be determined by multiplying the balance of the
Director's unpaid deferred fees and applicable interest on the date of such
installment by a fraction, the numerator of which is one and the denominator of
which is the number of remaining unpaid installments. Such balance shall be
appropriately reduced to reflect the installment payments made hereunder.
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SECTION VI - WHEN PAYMENT OF DEFERRED DIRECTORS' FEES COMMENCES
The payment in a lump sum or installments of amounts deferred pursuant to an
election under this Plan shall commence on January 15 of the first year to
which payment has been deferred and shall be paid in accordance with the terms
of such election. If a Director shall die prior to the first year to which
payment has been deferred, such payment shall commence on January 15 of the
calendar year immediately following the year of death and shall be paid in the
manner specified in such election.
In the event a participating Director receives an assessment of income taxes
from the Internal Revenue Service which treats any amount payable under this
Plan as being includible in such Director's gross income prior to the actual
payment of such amount to such Director, the Company shall pay an amount equal
to such income taxes to such Director within 30 days after written notice from
such Director of such assessment, and such Director's fee account shall be
reduced by an amount equal to such income taxes.
Each payment under this Plan shall be reduced by any federal, state, or local
taxes which the Company determines should be withheld from such payment.
Benefits under this Plan shall be payable solely from the general assets of the
Company; provided, however, that no provision in this Plan shall preclude the
Company from segregating assets which are intended to be a source for payment
of benefits under this Plan. Each participant in this Plan shall have the
status of a general unsecured creditor of the Company. This Plan constitutes a
promise by the Company to make benefit payments in the future. It is intended
that this Plan be unfunded for tax purposes and that this Plan shall remain
unfunded for the entire period of its existence.
SECTION VII - DESIGNATION OF BENEFICIARY
Each Director, on becoming a participant, shall file with the Corporate
Secretary of the Company a beneficiary designation on the form attached as
Exhibit "C" designating one or more beneficiaries to whom payments otherwise
due the participant shall be made in the event of his or her death while
serving as a Director or after leaving the Board. A beneficiary designation
will be effective only if the signed beneficiary designation form is filed with
the Corporate Secretary of the Company while the Director is alive, and will
cancel all beneficiary designations signed and filed previously under this
Plan. If the primary beneficiary shall survive the Director but dies before
receiving all the amounts due hereunder, the deferred amounts remaining unpaid
at the time of death shall be paid in one lump sum to the legal representative
of the primary beneficiary's estate. If the primary beneficiary shall
predecease the Director, amounts remaining unpaid at the time of the Director's
death shall be paid in the order specified by the Director to the
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contingent beneficiary(s) surviving the Director. If the contingent
beneficiary(s) dies before receiving all the amounts due hereunder, the unpaid
amount shall be paid in one lump sum to the legal representative of such
contingent beneficiary(s) estate. If the Director shall fail to designate a
beneficiary(s) as provided in this Section, or if all designated beneficiaries
shall predecease the Director, the deferred amounts remaining unpaid at the
time of such Director's death shall be paid in one lump sum to the legal
representative of the Director's estate.
SECTION VIII - NON-ALIENABILITY AND NON-TRANSFERABILITY
No Director, beneficiary designated by the Director, or creditors of the
Director shall have any right to, directly or indirectly, anticipate, alienate,
sell, transfer, assign, pledge, encumber, attach, or garnish any amount that is
or may be payable hereunder.
SECTION IX - ADMINISTRATION OF PLAN; ARBITRATION
(a) Full power and authority to construe, interpret, and administer the
Plan shall be vested in the Organization and Compensation Committee of
the Board of Directors of the Company. Decisions of the Organization
and Compensation Committee shall be final, conclusive, and binding
upon all parties.
(b) Notwithstanding Section IX(a) hereof, in the event of any dispute,
claim, or controversy (hereinafter referred to as a "Grievance") between
a Director who is eligible to elect to receive the benefits provided
under this Plan and the Company with respect to the payment of benefits
to such Director under this Plan, the computation of benefits under this
Plan, or any of the terms and conditions of this Plan, such Grievance
shall be resolved by arbitration in accordance with this Section IX(b).
(1) Arbitration shall be the sole and exclusive remedy to
redress any Grievance.
(2) The arbitration decision shall be final and binding, and a
judgment on the arbitration award may be entered in any
court of competent jurisdiction and enforcement may be had
according to its terms.
(3) The arbitration shall be conducted by the American
Arbitration Association in accordance with the Commercial
Arbitration Rules of the American Arbitration Association
and expenses of the arbitrators and the American Arbitration
Association shall be borne by the Company. Neither the
Company nor such Director shall be entitled to attorneys'
fees, expert witness fees, or other expenses
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expended in the course of such arbitration or the
enforcement of any award rendered thereunder.
(4) The place of the arbitration shall be the offices of the
American Arbitration Association in the Detroit Metropolitan
area, Michigan.
(5) The arbitrators 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
arbitrators' sole authority shall be to apply any terms and
conditions of this Plan. Since arbitration is the exclusive
remedy with respect to any Grievance, no Director eligible to
receive benefits provided under this Plan has the right to
resort to any federal court, state court, local court, or
administrative agency concerning breaches of any terms and
provisions hereunder, and the decision of the arbitrators
shall be a complete defense to any suit, action, or
proceeding instituted in any federal court, state court,
local court or administrative agency by such Director or
the Company with respect to any Grievance which is
arbitrable as herein set forth.
(6) The arbitration provisions shall, with respect to any
Grievance, survive the termination of this Plan.
SECTION X - AMENDMENT OR TERMINATION OF PLAN
The Board of Directors may amend or terminate this Plan at any time. Any
amendment or termination of this Plan shall not affect the rights of
participants or beneficiaries to the amounts in the deferred Directors' fee
accounts at the time of such amendment or termination.
SECTION XI - APPLICABLE LAW
The provisions of this Plan shall be interpreted and construed in accordance
with the laws of the State of Michigan.
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EXHIBIT "A"
NOTICE OF ELECTION TO DEFER THE
PAYMENT OF DIRECTORS' FEES
Corporate Secretary
The Detroit Edison Company
2000 Second Avenue
Detroit, MI 48226
Re: The Detroit Edison Company Plan for
Deferring the Payment of Directors' Fees
Pursuant to provisions of the above-referenced Plan, I hereby elect to
have fees payable to me for services on The Detroit Edison Company Board of
Directors and on any committee of such Board deferred in the manner specified
below. It is understood and agreed that this election shall become effective
on the first day of the month following receipt of this Notice of Election by
the Secretary of the Company. understand that this election shall be
irrevocable with respect to fees that have been deferred and fees that have
been earned for the month in which a Notice of Termination shall be filed.
This election shall continue in effect for subsequent terms of office unless I
shall modify or revoke it.
Payment of deferred fees shall commence on January 15 of the Year of
Deferred Payment selected.
Year to Which Payment is Deferred: 19_______
Percentage of Fees Deferred: _______ %
Method of Payment:
Lump Sum __________, or
Installments _________ (Number of Years, not over 10)
Frequency of Installments: (Select one)
Annually ___________
Quarterly __________
Signature______________________________ Date ____________________
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EXHIBIT "B"
NOTICE OF TERMINATION
Corporate Secretary
The Detroit Edison Company
2000 Second Avenue
Detroit, MI 48226
Re: The Detroit Edison Company Plan for
Deferring the Payment of Directors' Fees
Pursuant to provisions of the above-referenced Plan, I hereby
terminate my participation in the Plan effective as of the first day of the
month following receipt of this Notice of Termination by the Secretary of the
Company.
Signature ___________________________________________ Date _______________
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EXHIBIT "C"
BENEFICIARY DESIGNATION
Corporate Secretary
The Detroit Edison Company
2000 Second Avenue
Detroit, MI 48226
Re: The Detroit Edison Company Plan for
Deferring the Payment of Directors' Fees
Any fees for my service on the Board of Directors of The Detroit
Edison Company or on any committee of the Board which were deferred under the
above-referenced Plan and remain unpaid at my death shall be paid to the
following primary beneficiary:
________________________________________________________________________
Name
________________________________________________________________________
Address
If the above-named primary beneficiary shall predecease me, I
designate the following persons as contingent beneficiaries, in the order
shown, to receive any such unpaid deferred fees:
1. _____________________________________________________________________
Name
________________________________________________________________________
Address
2. _____________________________________________________________________
Name
________________________________________________________________________
Address
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3. _____________________________________________________________________
Name
________________________________________________________________________
Address
This supersedes any previous beneficiary designation made by me with
respect to deferred fees under the Plan. I reserve the right to change the
beneficiary in accordance with the terms of the Plan.
Signature _________________________________________________ Date _______
Witnesses _________________________________________________
___________________________________________________________
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EXHIBIT 3L(*10.20)
DTE ENERGY COMPANY
RETIREMENT PLAN
FOR NON-EMPLOYEE DIRECTORS
1. PURPOSE
In order to provide a retirement allowance for service as a director while
not an employee of The Detroit Edison Company ("DECO"), The Detroit Edison
Company Retirement Plan For Non-Employe Directors was established
effective January 1, 1990. As the result of the Agreement and Plan of
Exchange effective January 1, 1996, DTE Energy Company (the "Company")
became the parent holding company of DECO. The Company now desires to
establish the DTE Energy Company Retirement Plan for Non-Employee
Directors to provide a retirement allowance for service as a director of
the Company and/or of DECO while not an employee of the Company, DECO or
their Affiliates. Accordingly, the Company hereby establishes the DTE
Energy Company Retirement Plan for Non-Employee Directors (the "Plan") as
hereinafter set forth, and The Detroit Edison Company Retirement Plan for
Non-Employe Directors is hereby merged into the Plan, all effective as of
January 1, 1996, (the "Effective Date").
2. ELIGIBILITY
This Plan provides a monthly retirement allowance to each director
("participant") of the Company or of DECO who has served (a) on any and
all of the Board of Directors of the Company and the Board of Directors of
DECO (each of which is referred to herein as a "Board" and collectively as
the "Boards") as a director for five or more years (not counting any year
more than once) and (b) as a director of the Company or of DECO at any
time on or after the Effective Date while not an employee of the Company,
DECO or any Affiliate. In addition, each former director of DECO who was
receiving benefits under The Detroit Edison Company Retirement Plan for
Non-Employe Directors immediately prior to the Effective Date shall be a
participant herein and entitled on and after the Effective Date to
continued payment under this Plan of the benefit the participant was
entitled to under The Detroit Edison Company Retirement Plan for
Non-Employe Directors. For purposes of the Plan, "Affiliate" shall mean
any entity in which the Company directly or indirectly owns more than 50%
of the voting securities.
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3. AMOUNT OF DISTRIBUTION
(a) The monthly retirement allowance in respect of a participant
terminating service from the Boards on or after the Effective
Date shall be determined as follows:
(1) The monthly retirement allowance in respect of a participant
who is a member of the Board of Directors of the Company and
of DECO immediately prior to the participant's termination of
service from all Boards on which the participant was serving
will be equal to one-twelfth (1/12th) of the sum of (A) the
aggregate annual cash retainer (not including Committee
Chairman's Fees and Board meeting, Board committee meeting or
Company or DECO-related meeting fees) for members of the Board
of Directors of the Company and of DECO in effect on the date of
the participant's termination of service from such Boards and
(B) the aggregate cash value of the stock, if any, awarded to
the participant under the Long-Term Incentive Plan of the
Company or DECO on the date of the most recent annual meeting of
shareholders of the Company or DECO, as the case may be,
occurring prior to the date of participant's termination of
service from the Boards. For this purpose, the cash value of
any stock awarded to the participant under the Long-Term
Incentive Plan shall be equal to the number of shares of stock
awarded to the participant multiplied by the average of the high
and low sales prices of such stock as listed in the Wall Street
Journal for the New York Stock Exchange Composite Tape on the
date of award, or if such date is not a business day, on the
business day immediately preceding the award date.
(2) The monthly retirement allowance in respect of a participant
who is not a member of the Board of Directors of DECO but is
a member of the Board of Directors of the Company immediately
prior to the participant's termination of service from all
Boards on which the participant was serving will be equal to
one-twelfth (1/12th) of the sum of (A) the annual cash
retainer (not including Committee Chairman's fees and Board
meeting, Board committee meeting or Company or DECO-related
meeting fees) for members of the Board of Directors of the
Company in effect on the date of the participant's termination
of service from such Board and (B) the aggregate cash value of
the stock, if any, awarded to the participant under the
Long-Term Incentive Plan of the Company or DECO on the date of
the most recent annual meeting of shareholders of the Company or
DECO, as the case may be,
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<PAGE> 3
occurring prior to the date of participant's termination of
service from the Board of Directors of the Company. For this
purpose, the cash value of any stock awarded to the participant
under the Long-Term Incentive Plan shall be equal to the number
of shares of stock awarded to the participant multiplied by the
average of the high and low sales prices of such stock as listed
in the Wall Street Journal for the New York Stock Exchange
Composite Tape on the date of award, or if such date is not a
business day, on the business day immediately preceding the
award date.
(3) The monthly retirement allowance in respect of a participant
who is not a member of the Board of Directors of the Company
but is a member of the Board of Directors of DECO immediately
prior to the participant's termination of service from all
Boards on which the participant was serving will be equal to
one-twelfth (1/12th) of the sum of (A) the annual cash
retainer (not including Committee Chairman's fees and Board
meeting, Board Committee meeting or Company or DECO-related
meeting fees) for members of the Board of Directors of DECO in
effect on the date of the participant's termination of service
from such Board and (B) the aggregate cash value of the stock,
if any, awarded to the participant under the Long-Term Incentive
Plan of the Company or DECO on the date of the most recent
annual meeting of shareholders of the Company or DECO, as the
case may be, occurring prior to the date of participant's
termination of service from the Board of Directors of DECO. For
this purpose, the cash value of any stock awarded to the
participant under the Long-Term Incentive Plan shall be equal to
the number of shares of stock awarded to the participant
multiplied by the average of the high and low sales prices of
such stock as listed in the Wall Street Journal for the New York
Stock Exchange Composite Tape on the date of award, or if such
date is not a business day, on the business day immediately
preceding the award date.
(b) Payments shall be made monthly commencing with the month
following such participant's termination of service from all
of the Boards on which the participant was serving.
(c) In the event a participant receives an assessment of income
taxes from the Internal Revenue Service which treats any
amounts payable under this Plan as being includible in such
participant's gross income prior to the actual payment of such amount
to such participant, the Company shall pay, or cause to be paid, an
amount equal to such income taxes to such participant within 30 days
after written notice from such participant of such assessment. The
amount of the monthly
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retirement allowance which would otherwise be paid following
such participant's termination of service on the Boards shall be
reduced, dollar for dollar, starting with the first such payment, by
the amount of income taxes previously advanced to the participant
hereunder, until such amount has been fully recovered under the Plan.
(d) Each payment under this Plan shall be reduced by an federal, state
or local taxes which the Company determines should be withheld from
such payment.
(e) Benefits under this Plan should be payable solely from the
general assets of the Company or DECO, as the case may be. Each
participant in this Plan shall have the status of a general unsecured
creditor of the Company or of DECO, respectively. This Plan
constitutes a promise by the Company or DECO, as the case may be, to
make benefit payments in the future. It is intended that this Plan
be unfunded for tax purposes and that this Plan shall remain unfunded
during the entire period of its existence.
4. DURATION
The monthly retirement allowance payments will continue for a period equal
to the aggregate number of months served on any and all of the Boards
while not an employee of the Company, DECO or any Affiliate (but not
counting any month more than once), or until the participant's death,
whichever occurs first. In the event of death prior to the conclusion of
scheduled payments under this Plan, any and all liability of the Company
and DECO under this Plan is terminated. The participant's estate shall
have no rights hereunder. There is no allowance to a surviving spouse or
other beneficiary.
5. SUSPENSION OF PAYMENTS
Payment of the retirement allowance to a participant who is again elected
to the Board of Directors of the Company or of DECO will be suspended.
Any future allowance will be recalculated based on the annual retainer in
effect at the time of the participant's subsequent termination of service
from the Boards. The duration of payments will be determined by the
cumulative number of whole months served on any and all of the Boards (not
counting any month more than once) minus the number of retirement
allowance payments received prior to re-election to a Board.
6. NONALIENATION OF BENEFITS
The right of a participant to payment of a retirement allowance hereunder
shall not be anticipated, alienated, sold, assigned, transferred, pledged,
encumbered, attached, or garnished by a participant or a participant's
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<PAGE> 5
creditors and shall not be subject to garnishment, execution,
attachment, or similar process. Any attempted anticipation, sale,
assignment, transfer, pledge, levy, encumbrance, attachment,
garnishment, or similar process shall be null and void and without
effect.
7. ADMINISTRATION: ARBITRATION
(a) This Plan shall be administered by the Nominating
Committee of the Board of Directors of the Company (the "Nominating
Committee"), who shall have full power and authority to make each
determination provided for in this Plan, to interpret this Plan, and
to establish rules, regulations and procedures for carrying out its
purpose.
(b) The Secretary of the Company shall be responsible for
recordkeeping under this Plan and shall also be responsible for
making, or causing to be made, all payments provided for by this
Plan.
(c) Notwithstanding Section 7(a) hereof, in the event of any
dispute, claim, or controversy (hereinafter referred to as a
"Grievance") between a director who is eligible to elect to receive
the benefits provided under this Plan and the Company with respect to
the payment of benefits to such director under this Plan, the
computation of benefits under this Plan, or any of the terms and
conditions of this Plan, such Grievance shall be resolved by
arbitration in accordance with this Section 7(c).
(1) Arbitration shall be the sole and exclusive remedy to redress
any Grievance.
(2) The arbitration decision shall be final and binding, and a
judgment on the arbitration award may be entered in any court of
competent jurisdiction and enforcement may be had according to
its terms.
(3) The arbitration shall be conducted by the American Arbitration
Association in accordance with the Commercial Arbitration Rules
of the American Arbitration Association and expenses of the
arbitrators and the American Arbitration Association shall be
borne by the Company. Neither the Company nor such director
shall be entitled to attorneys' fees, expert witness fees, or
other expenses expended in the course of such arbitration or the
enforcement of any award rendered thereunder.
(4) The place of the Arbitration shall be the offices of the American
Arbitration Association in Detroit Metropolitan area, Michigan.
(5) The arbitrator(s) shall not have the jurisdiction or authority to
change any of the provisions of this Plan by alteration of,
addition to, or
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subtraction from the terms thereof. The arbitrator(s)' sole
authority shall be to apply any terms and conditions of this
Plan. Since arbitration is the exclusive remedy with respect to
any Grievance, no director eligible to receive benefits provided
under this Plan has the right to resort to any federal court,
state court, local court, or any administrative agency
concerning breaches of any terms and provisions hereunder, and
the decision of the arbitrator(s) shall be a complete defense to
any suit, action, or proceeding instituted in any federal court,
state court, local court or administrative agency by such
director or the Company with respect to any Grievance which is
arbitrable as herein set forth.
(6) The arbitration provisions shall, with respect to any Grievance,
survive the termination of this Plan.
(d) This Plan is a non-contributory, non-qualified and unfunded plan and
represents only an unsecured general obligation of the Company and of
DECO, respectively. Neither the foregoing or any other provision of
this Plan shall preclude, however, the Company or DECO from
segregating assets which are intended to be a source for payment of
benefits under this Plan. The Company shall pay, or cause to be paid,
benefit payments to which a director is entitled under this Plan from
the general assets of the Company or DECO, as the case may be, based
on service attributable to the respective Boards.
8. AMENDMENT OR TERMINATION
The Board of Directors of the Company reserves the right to amend, modify,
supplement, suspend or terminate this Plan at any time, provided, however,
that no such amendment, modification, supplement or termination shall
affect the right of any participant who is immediately eligible to receive
an allowance hereunder to receive benefits theretofore accrued.
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EXHIBIT 3L(*10.21)
DTE ENERGY COMPANY
PLAN FOR DEFERRING THE
PAYMENT OF DIRECTORS' FEES
The DTE Energy Company Plan for Deferring the Payment of Directors'
Fees (the "Plan") is established by DTE Energy Company (the "Company) effective
as of January 1, 1996.
SECTION I - PURPOSE
The purpose of the Plan is to enable each Director to defer all or a portion of
his or her fees for future services as a member of the Board of Directors or as
a member of any committee thereof.
SECTION II - ELIGIBILITY
Any Director of the Company who is not a Company employee or an employee of any
Affiliate shall be eligible to participate in the Plan. For purposes of the
Plan, "Affiliate shall mean any entity in which the Company directly or
indirectly beneficially owns more than 50% of the voting securities.
SECTION III - ELECTION, MODIFICATION, AND TERMINATION
PROCEDURES
Any Director wishing to participate in the Plan must file with the Corporate
Secretary of the Company at 2000 Second Avenue, Detroit, MI 48226, a written
Notice of Election on the form attached as Exhibit "A" to defer payment of all
or a portion of his or her Director's fees. Such an election to participate in
the Plan must be made prior to the beginning of the month for which fees are
payable. An effective election with respect to Directors' fees that have been
deferred under the terms of this Plan and fees that have already been earned
may not be modified or revoked. An effective election with regard to fees that
have not been deferred or earned may be modified by filing a new Notice of
Election or may be terminated by filing a Notice of Termination on the form
attached as Exhibit "B". A Director who shall have terminated an effective
election may thereafter file a new election covering a subsequent period.
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<PAGE> 2
SECTION IV - ESTABLISHMENT AND ADMINISTRATION OF DEFERRED
DIRECTORS' FEE ACCOUNT
The amount of any Director's fees deferred in accordance with an election shall
be credited to a deferred Director's fee account maintained by the Company.
Such account shall remain a part of the general funds of the Company, and
nothing contained in this Plan shall be deemed to create a trust or fund of any
kind or create any fiduciary relationship.
As of the last day of each month for each Director participating in this Plan,
the deferred Director's fee account for such Director shall be adjusted as
follows:
(a) The account shall first be charged with any distributions made
during the month.
(b) The account balance shall then be credited with interest for
that month. Such interest shall be computed by multiplying
the applicable portion of the account balance after the
adjustment provided for in Subsection (a) of this Section by a
fraction, the numerator of which is the 5-Year United States
Treasury Bond rate, as reported in The Wall Street Journal as
of the last business day of each month, and the denominator of
which is 12.
(c) Finally, the account shall be credited with the amount, if
any, of Director's fees deferred during that month.
A separate record of deferred Director's fees and applicable interest shall be
maintained by the Company for each participant in this Plan.
SECTION V - PAYMENT OF DEFERRED DIRECTORS' FEES
Deferred fees shall be paid to a Director or, in the event of death, to his or
her designated beneficiary in accordance with the Notice of Election and
Beneficiary Designation forms that have been filed with the Corporate Secretary
of the Company. If a Director elects to receive payment of his or her deferred
fees in installments rather than in a lump sum, the payment period shall not
exceed ten years following the payment commencement date. The amount of any
installment payment shall be determined by multiplying the balance of the
Director's unpaid deferred fees and applicable interest on the date of such
installment by a fraction, the numerator of which is one and the denominator of
which is the number of remaining unpaid installments. Such balance shall be
appropriately reduced to reflect the installment payments made hereunder.
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<PAGE> 3
SECTION VI - WHEN PAYMENT OF DEFERRED DIRECTORS' FEES
COMMENCES
The payment in a lump sum or installments of amounts deferred pursuant to an
election under this Plan shall commence on January 15 of the first year to
which payment has been deferred and shall be paid in accordance with the terms
of such election. If a Director shall die prior to the first year to which
payment has been deferred, such payment shall commence on January 15 of the
calendar year immediately following the year of death and shall be paid in the
manner specified in such election.
In the event a participating Director receives an assessment of income taxes
from the Internal Revenue Service which treats any amount payable under this
Plan as being includible in such Director's gross income prior to the actual
payment of such amount to such Director, the Company shall pay an amount equal
to such income taxes to such Director within 30 days after written notice from
such Director of such assessment, and such Director's fee account shall be
reduced by an amount equal to such income taxes.
Each payment under this Plan shall be reduced by any federal, state, or local
taxes which the Company determines should be withheld from such payment.
Benefits under this Plan shall be payable solely from the general assets of the
Company; provided, however, that no provision in this Plan shall preclude the
Company from segregating assets which are intended to be a source for payment
of benefits under this Plan. Each participant in this Plan shall have the
status of a general unsecured creditor of the Company. This Plan constitutes a
promise by the Company to make benefit payments in the future. It is intended
that this Plan be unfunded for tax purposes and that this Plan shall remain
unfunded for the entire period of its existence.
SECTION VII - DESIGNATION OF BENEFICIARY
Each Director, on becoming a participant, shall file with the Corporate
Secretary of the Company a beneficiary designation on the form attached as
Exhibit "C" designating one or more beneficiaries to whom payments otherwise
due the participant shall be made in the event of his or her death while
serving as a Director or after leaving the Board. A beneficiary designation
will be effective only if the signed beneficiary designation form is filed with
the Corporate Secretary of the Company while the Director is alive, and will
cancel all beneficiary designations signed and filed previously under this
Plan. If the primary beneficiary shall survive the Director but dies before
receiving all the amounts due hereunder, the deferred amounts remaining unpaid
at the time of death shall be paid in one lump sum to the legal representative
of the primary beneficiary's estate. If the primary beneficiary shall
predecease the Director, amounts remaining unpaid at the time of the Director's
death shall be paid in the order specified by the Director to the contingent
beneficiary(s) surviving the Director. If the contingent beneficiary(s) dies
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before receiving all the amounts due hereunder, the unpaid amount shall be paid
in one lump sum to the legal representative of such contingent beneficiary(s)
estate. If the Director shall fail to designate a beneficiary(s) as provided
in this Section, or if all designated beneficiaries shall predecease the
Director, the deferred amounts remaining unpaid at the time of such Director's
death shall be paid in one lump sum to the legal representative of the
Director's estate.
SECTION VIII - NON-ALIENABILITY AND NON-TRANSFERABILITY
No Director, beneficiary designated by the Director, or creditors of the
Director shall have any right to, directly or indirectly, anticipate, alienate,
sell, transfer, assign, pledge, encumber, attach, or garnish any amount that is
or may be payable hereunder.
SECTION IX - ADMINISTRATION OF PLAN; ARBITRATION
(a) Full power and authority to construe, interpret, and administer the
Plan shall be vested in the Nominating Committee of the Board of
Directors of the Company. Decisions of the Nominating Committee shall
be final, conclusive, and binding upon all parties.
(b) Notwithstanding Section IX(a) hereof, in the event of any dispute,
claim, or controversy (hereinafter referred to as a "Grievance")
between a Director who is eligible to elect to receive the benefits
provided under this Plan and the Company with respect to the payment
of benefits to such Director under this Plan, the computation of
benefits under this Plan, or any of the terms and conditions of this
Plan, such Grievance shall be resolved by arbitration in accordance
with this Section IX(b).
(1) Arbitration shall be the sole and exclusive remedy to
redress any Grievance.
(2) The arbitration decision shall be final and binding,
and a judgment on the arbitration award may be
entered in any court of competent jurisdiction and
enforcement may be had according to its terms.
(3) The arbitration shall be conducted by the American
Arbitration Association in accordance with the
Commercial Arbitration Rules of the American
Arbitration Association and expenses of the arbitrators
and the American Arbitration Association shall be borne
by the Company. Neither the Company nor such Director
shall be entitled to attorneys' fees, expert witness
fees, or other expenses expended in the course of such
arbitration or the enforcement of any award rendered
thereunder.
4
<PAGE> 5
(4) The place of the arbitration shall be the offices of the
American Arbitration Association in the Detroit
Metropolitan area, Michigan.
(5) The arbitrator(s) shall not have the jurisdiction or
authority to change any of the provisions of this Plan
by alteration of, addition to, or subtraction from the
terms thereof. The arbitrator(s)' sole authority shall
be to apply any terms and conditions of this
Plan. Since arbitration is the exclusive remedy with
respect to any Grievance, no Director eligible to
receive benefits provided under this Plan has the right
to resort to any federal court, state court, local
court, or administrative agency concerning breaches of
any terms and provisions hereunder, and the decision of
the arbitrator(s) shall be a complete defense to any
suit, action, or proceeding instituted in any federal
court, state court, local court or administrative
agency by such Director or the Company with respect to
any Grievance which is arbitrable as herein set forth.
(6) The arbitration provisions shall, with respect to any
Grievance, survive the termination of this Plan.
SECTION X - AMENDMENT OR TERMINATION OF PLAN
The Board of Directors may amend or terminate this Plan at any time. Any
amendment or termination of this Plan shall not affect the rights of
participants or beneficiaries to the amounts in the deferred Directors' fee
accounts at the time of such amendment or termination.
SECTION XI - APPLICABLE LAW
The provisions of this Plan shall be interpreted and construed in accordance
with the laws of the State of Michigan.
5
<PAGE> 6
EXHIBIT "A"
NOTICE OF ELECTION TO DEFER THE
PAYMENT OF DIRECTORS' FEES
Corporate Secretary
DTE Energy Company
2000 2nd Avenue
Detroit, MI 48226
RE: DTE ENERGY COMPANY PLAN FOR
DEFERRING THE PAYMENT OF DIRECTORS' FEES
Pursuant to provisions of the above-referenced Plan, I hereby elect to
have fees payable to me for services on the DTE Energy Company Board of
Directors and on any committee of such Board deferred in the manner specified
below. It is understood and agreed that this election shall become effective
on the first day of the month following receipt of this Notice of Election by
the Secretary of the Company. I understand that this election shall be
irrevocable with respect to fees that have been deferred and fees that have
been earned for the month in which a Notice of Termination shall be filed.
This election shall continue in effect for subsequent terms of office unless I
shall modify or revoke it.
Payment of deferred fees shall commence on January 15 of the Year of
Deferred Payment selected.
YEAR TO WHICH PAYMENT IS DEFERRED: 19____
PERCENTAGE OF FEES DEFERRED: ______%
METHOD OF PAYMENT:
Lump Sum__________, or
Installments___________(Number of Years, not over 10)
FREQUENCY OF INSTALLMENTS: (Select one)
Annually ______________
Quarterly _____________
Signature _________________________________________Date ______________________
6
<PAGE> 7
EXHIBIT "B"
NOTICE OF TERMINATION
Corporate Secretary
DTE Energy Company
2000 2nd Avenue
Detroit, MI 48226
RE: DTE ENERGY COMPANY PLAN FOR
DEFERRING THE PAYMENT OF DIRECTORS' FEES
Pursuant to provisions of the above-referenced Plan, I hereby
terminate my participation in the Plan effective as of the first day of the
month following receipt of this Notice of Termination by the Secretary of the
Company.
Signature ___________________________________Date ___________________________
7
<PAGE> 8
EXHIBIT "C"
BENEFICIARY DESIGNATION
Corporate Secretary
DTE Energy Company
2000 2nd Avenue
Detroit, MI 48226
RE: DTE ENERGY COMPANY PLAN FOR
DEFERRING THE PAYMENT OF DIRECTORS' FEES
Any fees for my service on the Board of Directors of DTE Energy
Company or on any committee of the Board which were deferred under the
above-referenced Plan and remain unpaid at my death shall be paid to the
following primary beneficiary:
_____________________________________________________________________________
NAME
_____________________________________________________________________________
ADDRESS
If the above-named primary beneficiary shall predecease me, I
designate the following persons as contingent beneficiaries, in the order
shown, to receive any such unpaid deferred fees:
1._____________________________________________________________________________
NAME
_____________________________________________________________________________
ADDRESS
2._____________________________________________________________________________
NAME
_____________________________________________________________________________
ADDRESS
8
<PAGE> 9
3._____________________________________________________________________________
NAME
_____________________________________________________________________________
ADDRESS
This supersedes any previous beneficiary designation made by me with
respect to deferred fees under the Plan. I reserve the right to change the
beneficiary in accordance with the terms of the Plan.
Signature__________________________________________Date_______________________
Witnesses___________________________________
____________________________________________
9
<PAGE> 1
EXHIBIT 4(11)
DTE ENERGY COMPANY (a)
PRIMARY AND FULLY DILUTED EARNINGS PER SHARE
OF COMMON STOCK
<TABLE>
<CAPTION>
Twelve Months
Ended
September 30, 1995
------------------
(Thousands, except per share amounts)
<S> <C>
PRIMARY:
Earnings for Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 419,614
Weighted average number of common shares outstanding (b) . . . . . . . . . . . . . . . . . . . 144,877
Earnings per share of Common Stock based on weighted
average number of shares outstanding . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 2.90
FULLY DILUTED:
Earnings for Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 419,614
Convertible Preferred Stock dividends . . . . . . . . . . . . . . . . . . . . . . . . . . . . 265
-------------
$ 419,879
=============
Weighted average number of common shares outstanding (b) . . . . . . . . . . . . . . . . . . . 144,877
Conversion of convertible Preferred Stock . . . . . . . . . . . . . . . . . . . . . . . . . . 298
-------------
145,175
=============
Earnings per share of Common Stock assuming conversion of
outstanding convertible Preferred Stock . . . . . . . . . . . . . . . . . . . . . . . . . . $ 2.89
</TABLE>
- ---------------
(a) As reported in Item 2 hereof, DTE Energy Company became the sole owner of
The Detroit Edison Company on January 1, 1996. DTE Energy Company is,
for financial reporting purposes, substantially the same as The Detroit
Edison Company.
(b) Based on a daily 1995 average for The Detroit Edison Company.
<PAGE> 1
EXHIBIT 5(12A)
DTE ENERGY COMPANY (a)
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
<TABLE>
<CAPTION>
Twelve Months
Ended
September 30, 1995
------------------
(Thousands, except for ratio)
<S> <C>
Net income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 448,377
-------------
Taxes based on income:
Current income taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199,077
Deferred taxes - net . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103,643
Investment tax credit adjustments - net . . . . . . . . . . . . . . . . . . . . . . . . . . . (15,022)
Municipal and state . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,869
-------------
Total taxes based on income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290,567
-------------
Fixed charges:
Interest on long-term debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273,679
Amortization of debt discount, premium and expense . . . . . . . . . . . . . . . . . . . . . . 11,178
Other interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,498
Interest factor of rents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29,000
-------------
Total fixed charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319,355
-------------
Earnings before taxes based on income and fixed charges . . . . . . . . . . . . . . . . . . . . . $ 1,058,299
=============
Ratio of earnings to fixed charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3.31
</TABLE>
- ---------------
(a) As reported in Item 2 hereof, DTE Energy Company became the sole owner of
The Detroit Edison Company on January 1, 1996. DTE Energy Company is,
for financial reporting purposes, substantially the same as The Detroit
Edison Company.
<PAGE> 1
EXHIBIT 5(12B)
DTE ENERGY COMPANY (a)
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
AND PREFERRED STOCK DIVIDEND REQUIREMENTS
<TABLE>
<CAPTION>
Twelve Months
Ended
September 30, 1995
------------------
(Thousands, except for ratio and percent)
<S> <C>
Net income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 448,377
---------------
Taxes based on income:
Current income taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199,077
Deferred taxes - net . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103,643
Investment tax credit adjustments - net . . . . . . . . . . . . . . . . . . . . . . . . . . . (15,022)
Municipal and state . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,869
---------------
Total taxes based on income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 290,567
---------------
Fixed charges:
Interest on long-term debt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 273,679
Amortization of debt discount, premium and expense . . . . . . . . . . . . . . . . . . . . . . 11,178
Other interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,498
Interest factor of rents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29,000
---------------
Total fixed charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 319,355
---------------
Earnings before taxes based on income and fixed charges . . . . . . . . . . . . . . . . . . . . . $ 1,058,299
===============
Preferred stock dividend requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 28,763
Dividends meeting requirement of IRC Section 247 . . . . . . . . . . . . . . . . . . . . . . . . 3,870
Percent deductible for income tax purposes . . . . . . . . . . . . . . . . . . . . . . . . . . . 40.00 %
Amount deductible . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,548
Amount not deductible . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27,215
Ratio of pretax income to net income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.65
Dividend factor for amount not deductible . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44,905
Amount deductible . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,548
---------------
Total preferred stock dividend factor . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46,453
Total fixed charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319,355
---------------
Total fixed charges and preferred stock dividends . . . . . . . . . . . . . . . . . . . . . . $ 365,808
===============
Ratio of earnings to fixed charges and preferred stock
dividend requirements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2.89
</TABLE>
- ---------------
(a) As reported in Item 2 hereof, DTE Energy Company became the sole owner of
The Detroit Edison Company on January 1, 1996. DTE Energy Company is,
for financial reporting purposes, substantially the same as The Detroit
Edison Company.
<PAGE> 1
EXHIBIT 3M(21)
SUBSIDIARIES OF REGISTRANT
The Detroit Edison Company - Michigan Corporation
- Subsidiaries of Detroit Edison
Midwest Energy Resources Company - Michigan Corporation
(sometimes known as MERC)
The Edison Illuminating Company of Detroit-Michigan Corporation
St. Clair Energy Corporation - Michigan Corporation (sometimes
known as St. Clair)
DE Energy Services, Inc. - Michigan Corporation
- Subsidiaries of DE Energy
Biomass Energy Systems, Inc. - Michigan Corporation
- Subsidiaries of Biomass
RES Power, Inc. - Michigan Corporation
Somoma Energy Systems, Inc. - Michigan Corporation
Riverview Gas Producers, Inc. - Michigan Corporation
Edison Energy Services, Inc. - Michigan Corporation
- Subsidiary of Edison Energy
PCI Enterprises, Inc. - Michigan Corporation
DTE Capital Corporation - Michigan Corporation
Syndeco Realty Corporation - Michigan Corporation
Edison Development Corporation - Michigan Corporation
Subsidiary of Edison Development
EdVenture Capital Corp. - Michigan Corporation
UTS Systems, Inc. - Michigan Corporation
