DTE Energy 2015 Annual Report Download - page 161

(F) Other intentional activity, including but not limited to a breach of the Participant’s fiduciary duties
with respect to the Company, a Subsidiary, or any welfare plan or pension plan sponsored by the
Company or a Subsidiary;
which, in the reasonable judgment of the Board and based on a preponderance of the evidence available to the
Board is significantly detrimental to the reputation, goodwill or business of the Company or significantly
disrupts the workplace environment or operation of the Company’s business or administrative activities.
For purposes of this Article XII, no act or failure to act on the part of a Participant will be deemed “intentional”
if it was due primarily to an error in the Participant’s judgment or the Participant’s negligence. An act will be
deemed “intentional” only if done or omitted to be done by the Participant not in good faith and without
reasonable belief that the Participant’s action or omission was in the best interest of the Company.
For purposes of this Article XII, the Participant has not been terminated for Cause unless and until:
(G) A meeting of the Board is called and held for the purpose of determining if the Participant is to be
terminated for Cause; and
(H) The Participant is given reasonable notice of the meeting and an opportunity to be heard before the
Board, with Participant’s counsel if the Participant so chooses; and
(I) At that meeting the Board finds, in the good faith opinion of the Board, that the Participant has
committed an act entitling the Board to terminate the Participant’s employment for Cause; and
(J) The Participant has been provided a copy of the resolution duly adopted at that meeting by the
affirmative vote of not less than three-quarters of the Board then in office and specifying in detail the
particulars of the Board’s finding.
The Participant and the Participant’s beneficiaries retain the right to contest the validity or propriety of the
Board’s determination that the Participant’s employment was terminated for Cause.
( v ) Competitive Activity. Competitive Activity is a Participant’s direct employment, without the written
consent of the Board (or any Committee of the Board to which the Board delegates its authority in writing), in
any business or enterprise (including the Participant’s own business or enterprise) if:
(A) The business or enterprise engages in substantial and direct competition with the Company or any
of its Subsidiaries in any state in which the Company or Subsidiary was engaged in business or actively
negotiating to enter business as of the Participant’s Change in Control Termination; and
(B) The business’s or enterprise’s sales of any product or service competitive with any product or
service of the Company or any of its Subsidiaries amounted to 10% of the business’s or enterprise’s net
sales for its most recently completed fiscal year; and
(C) the Company’s or Subsidiary’s net sales of the competitive product or service amounted to 10% of
the Company’s or Subsidiary’s net sales for its most recently completed fiscal year; and
(D) The Board determines the Participant’s employment in the business or enterprise is detrimental to
the Company or any of its Subsidiaries.
“Competitive Activity” does not include the mere ownership of not more than 10% of the total combined voting
power or aggregate value of all classes of stock or other securities in the enterprise and the Participant’s exercise
of rights resulting from ownership of the stock.
The Board (or its delegate) has sole discretion and authority to determine if a Participant is engaging in
Competitive Activity for purposes of this Article XII. It is the Participant’s responsibility to provide information
sufficient for the Board (or its delegate) to make these determinations.
( v i ) Incentive Pay. Incentive Pay is the aggregate annual payments of cash or equity compensation