exv4w3



 





Exhibit 4.3




REGISTRATION RIGHTS AGREEMENT




     THIS REGISTRATION RIGHTS AGREEMENT, dated as of March 3, 2004
(“Agreement”), is made by and between DTE ENERGY COMPANY, a Michigan
corporation, having an office at 2000 2nd Avenue, Detroit, Michigan 48226-1279
(the “Company”), and U.S. TRUST COMPANY, NATIONAL ASSOCIATION, solely in its
capacity as duly appointed and acting investment manager (the “Manager”) of a
segregated account in the DTE ENERGY COMPANY AFFILIATES EMPLOYEE BENEFIT PLANS
MASTER TRUST (the “Trust”) created in conjunction with the DTE ENERGY COMPANY
RETIREMENT PLAN (the “Plan”).



RECITALS



     A. WHEREAS, the Company has agreed to contribute an aggregate of 4,344,492
shares of its common stock, no par value (the “Registrable Shares”), to the
Trust (the “Contribution”);



     B. WHEREAS, the Registrable Securities immediately following the
Contribution will be held in a single segregated account in the Trust (the
“Segregated Account”);



     C. WHEREAS, pursuant to the Investment Management Agreement dated as of
March 3, 2004 (the “Investment Management Agreement”) by and among the Manager,
The Detroit Edison Investment Committee, acting solely in its capacity as named
fiduciary of the Trust (in such capacity, the “Committee”) and The Detroit
Edison Company, the Manager has been appointed as a “fiduciary” of the Trust,
as defined in Section 3(21) of the Employee Retirement Income Security Act of
1974, as amended (“ERISA”), with the authority to act on behalf of the Trust as
a special purpose investment manager with full discretion to manage the assets
held in the Segregated Account;



     D. WHEREAS, the Company has agreed to grant certain registration rights
with respect to the Registrable Shares held in the Segregated Account, on the
terms and subject to the conditions herein set forth;



     E. WHEREAS, pursuant to the Investment Management Agreement, the Manager
has full power and authority to execute and deliver this Agreement for the
account and on behalf of the Trust, to bind the Trust and to take any actions
required or permitted to be taken by, or on behalf of, the Trust in connection
with this Agreement;



     NOW, THEREFORE, in consideration of the premises and mutual promises set
forth herein, the parties hereto hereby agree as follows:



     1. REGISTRATION; COMPLIANCE WITH THE SECURITIES ACT.




1.1 Registration Procedures and Expenses. The Company hereby:













 






     (a) agrees that it shall use its reasonable commercial efforts to
prepare and file with the Securities and Exchange Commission (the “SEC”),
as soon as reasonably practicable after the date of the Contribution, a
registration statement on Form S-3 covering the Registrable Shares (the
“Registration Statement”), to enable the Manager to sell the Registrable
Shares from time to time in the manner contemplated by the plan of
distribution set forth in the Registration Statement;




     (b) agrees that it shall use its reasonable commercial efforts to
cause the Registration Statement to be declared effective as promptly as
possible after filing and to remain continuously effective until the
earlier of (i) the date on which all Registrable Shares are sold, and
(ii) the second anniversary of the date of the Contribution (the
“Registration Period”);




     (c) agrees that it shall prepare and file with the SEC such
amendments (including post-effective amendments) and supplements to the
Registration Statement and the prospectus filed with the SEC pursuant to
Rule 424(b) under the Securities Act of 1933, as amended (“Securities
Act”), or if no such filing is required, as included in the Registration
Statement (the “Prospectus”), as may be necessary to keep the
Registration Statement effective at all times during the Registration
Period;




     (d) agrees that it shall furnish the Manager with such reasonable
number of copies of the Prospectus in conformity with the requirements of
the Securities Act and such other documents as the Manager may reasonably
request, in order to facilitate the public sale or other disposition of
all or any of the Registrable Shares by the Manager;




     (e) agrees that it shall use its reasonable commercial efforts to
file documents required of the Company for normal blue sky clearance in
states specified in writing by the Manager; provided, however, that the
Company shall not be required to qualify to do business or consent to
service of process in any jurisdiction in which it is not now so
qualified or has not so consented;




     (f) agrees that it shall use its reasonable commercial efforts to
cause the Registrable Shares to be listed on the New York Stock Exchange
(the “NYSE”); and




     (g) agrees that it shall bear all expenses in connection with the
actions referred to in paragraphs (a) through (f) of this Section 1.1 and
the registration of the Registrable Shares pursuant to the Registration
Statement, including fees and expenses of legal counsel to the Manager
incurred in connection with the registration and sale of the Registrable
Shares, in an aggregate amount not to exceed $15,000, but excluding
underwriting discounts, brokerage fees and commissions incurred by the
Manager, the Trust or the Plan, if any.



   It shall be a condition precedent to the obligations of the Company to
take any action pursuant to this Section 1.1 that the Manager shall provide
such reasonable assistance to the Company and furnish, or cause to be
furnished, to the Company in writing such information regarding the Manager,
the Registrable Shares to be sold, and the intended method or methods of



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disposition of the Registrable Shares, as shall be required to effect the
registration of the Registrable Shares.





1.2 Transfer of Registrable Shares After Registration; Suspension.




     (a) The Manager agrees that it will not offer to sell or make any
sale, assignment, pledge, hypothecation or other transfer with respect to
the Registrable Shares that would constitute a sale within the meaning of
the Securities Act except pursuant to either (i) the Registration
Statement referred to in Section 1.1, following its effectiveness, or
(ii) Rule 144, and that it will promptly notify the Company of any
changes in the information set forth in the Registration Statement
regarding the Manager or the intended plan of distribution of the
Registrable Shares to the extent required by applicable securities laws.




     (b) In addition to any suspension rights under paragraph (c) below,
the Company may, upon the happening of any event that, in the judgment of
Company’s legal counsel, renders advisable the suspension of the
disposition of Registrable Shares covered by the Registration Statement
or use of the Prospectus due to pending corporate developments, public
filings with the SEC or similar events, suspend the disposition of
Registrable Shares covered by the Registration Statement or use of the
Prospectus for a period of not more than one hundred twenty (120) days on
written notice to the Manager (which notice will not disclose the content
of any material non-public information and will indicate the date of the
beginning and end of the intended suspension, if known), in which case
the Manager shall discontinue disposition of Registrable Shares covered
by the Registration Statement or use of the Prospectus until copies of a
supplemented or amended Prospectus are distributed to the Manager or
until the Manager is advised in writing by the Company that the
disposition of Registrable Shares covered by the Registration Statement
or use of the applicable Prospectus may be resumed, provided that such
right to suspend the disposition of Registrable Shares covered by the
Registration Statement or use of the Prospectus shall not be exercised by
Company for more than one hundred fifty (150) days in any twelve-month
period. The suspension and notice thereof described in this Section
1.2(b) shall be held in strictest confidence and not disclosed by the
Company or the Manager, except as required by law.




     (c) Subject to paragraph (d) below, in the event of: (i) any
request by the SEC or any other federal or state governmental authority
during the period of effectiveness of the Registration Statement for
amendments or supplements to the Registration Statement or related
Prospectus or for additional information, (ii) the issuance by the SEC or
any other federal or state governmental authority of any stop order
suspending the effectiveness of a registration statement or the
initiation of any proceedings for that purpose, (iii) the receipt by the
Company of any notification with respect to the suspension of the
qualification or exemption from qualification of any of the Registrable
Shares for sale in any jurisdiction or the initiation of any proceeding
for such purpose, (iv) any event or circumstance that necessitates the
making of any changes in the Registration Statement or Prospectus, or any
document incorporated or deemed to be incorporated therein by reference,
so that, in the case of the Registration Statement, it will not contain
any untrue statement of a material fact or omit to state a material fact



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required to be stated therein or necessary to make the statements
therein not misleading, and that in the case of the Prospectus, it will
not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, then the Company shall deliver a certificate
in writing to the Manager (the “Suspension Notice”) to the effect of the
foregoing (which notice will not disclose the content of any material
non-public information and will indicate the date of the beginning and
end of the intended suspension, if known), and, upon receipt of such
Suspension Notice, the Manager will refrain from selling any Registrable
Shares pursuant to the Registration Statement (a “Suspension”) until the
Manager’s receipt of copies of a supplemented or amended Prospectus
prepared and filed by the Company, or until it is advised in writing by
the Company that the current Prospectus may be used, and has received
copies of any additional or supplemental filings that are incorporated or
deemed incorporated by reference in any such Prospectus. In the event of
any Suspension, the Company will use its reasonable commercial efforts to
cause the use of the Prospectus so suspended to be resumed as soon as
possible after delivery of a Suspension Notice to the Manager. The
Suspension and Suspension Notice described in this Section 1.2(c) shall
be held in strictest confidence and not disclosed by the Company or the
Manager, except as required by law.




     (d) The Manager may sell Registrable Shares under the Registration
Statement provided that neither a Suspension nor a suspended disposition
under Section 1.2(c) hereof is then in effect, the Manager sells in
accordance with the plan of distribution in the Prospectus, and the
Manager arranges for delivery of a current Prospectus to any transferee
receiving such Registrable Shares in compliance with the prospectus
delivery requirements of the Securities Act.



              1.3 Indemnification. For the purpose of this Section 1.3, the term
“Registration Statement” shall include any preliminary or final prospectus,
exhibit, supplement or amendment included in or relating to the Registration
Statement referred to in Section 1.1.




     (a) Indemnification by the Company. To the extent permitted by
applicable law, the Company agrees to indemnify and hold harmless the
Manager (including, for purposes of this Section 1.3, the officers,
directors, employees and agents of the Manager), and each person, if any,
who controls the Manager within the meaning of the Securities Act,
against any losses, claims, damages, liabilities or expenses, joint or
several, to which the Manager or such controlling person may become
subject, under the Securities Act, the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), or any other federal or state statutory
law or regulation, or at common law or otherwise (including in settlement
of any litigation, if such settlement is effected with the written
consent of the Company, which consent shall not be unreasonably withheld
or delayed), only to the extent such losses, claims, damages, liabilities
or expenses (or actions in respect thereof as contemplated below) arise
out of or are based upon any untrue statement or alleged untrue statement
of any material fact contained in the Registration Statement, as amended
as of the time the Registration Statement was declared effective by the
SEC, the Prospectus, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state in any of
them a material fact



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required to be stated therein or necessary to make the statements in
any of them, in light of the circumstances under which they were made,
not misleading, and will reimburse the Manager and each such controlling
person for any reasonable legal and other expenses as such expenses are
reasonably incurred by the Manager or such controlling person in
connection with investigating, defending, settling, compromising or
paying any such loss, claim, damage, liability, expense or action;
provided, however, that the Company will not be liable in any such case
to the extent that any such loss, claim, damage, liability or expense
arises out of or is based upon (i) an untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration
Statement, the Prospectus or any amendment or supplement of the
Registration Statement or Prospectus in reliance upon and in conformity
with information furnished in writing to the Company by or on behalf of
the Manager, (ii) the failure of the Manager to comply with the covenants
and agreements contained in this Agreement respecting the sale of the
Registrable Shares, or (iii) any untrue statement or omission of a
material fact required to make such statement not misleading in any
Prospectus that is corrected in any subsequent Prospectus that was
delivered (excluding, however, the delivery of any document then
incorporated or deemed incorporated therein by reference) to the Manager
before the pertinent sale or sales by the Manager but was not given to
the purchaser prior to the sale to the purchaser.




        (b) Indemnification by the Manager. To the extent permitted by
applicable law, the Manager will indemnify and hold harmless the Company,
the Committee, each of the Company’s directors, each of the Company’s
officers who signed the Registration Statement and each person, if any,
who controls the Company within the meaning of the Securities Act,
against any losses, claims, damages, liabilities or expenses to which the
Company, each of its directors, each of its officers who signed the
Registration Statement or each controlling person may become subject,
under the Securities Act, the Exchange Act, or any other federal or state
statutory law or regulation, or at common law or otherwise (including in
settlement of any litigation, if such settlement is effected with the
written consent of the Manager, which consent shall not be unreasonably
withheld or delayed) only to the extent such losses, claims, damages,
liabilities or expenses (or actions in respect thereof as contemplated
below) arise out of or are based upon (i) any failure on the part of the
Manager to comply with the covenants and agreements contained in this
Agreement respecting the sale of the Registrable Shares, or (ii) any
untrue or alleged untrue statement of any material fact contained in the
Registration Statement, as amended as of the time the Registration
Statement was declared effective by the SEC, the Prospectus, or any
amendment or supplement to the Registration Statement or Prospectus, or
arise out of or are based upon the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, in
reliance upon and in conformity with information furnished in writing to
the Company by or on behalf of the Manager, and the Manager will
reimburse the Company, each of its directors, each of its officers who
signed the Registration Statement or each controlling person for any
reasonable legal and other expenses as such expenses are reasonably
incurred by the Company, each of its directors, each of its officers who
signed the Registration Statement or each controlling person in
connection



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with investigating, defending, settling, compromising or paying any
such loss, claim, damage, liability, expense or action. In no event
shall the liability of the Manager under this Section 1.3 be greater than
the aggregate fees received by the Manager pursuant to the Investment
Management Agreement.




        (c) Indemnification Procedure.




        (i) Promptly after receipt by an indemnified party under this
Section 1.3 of written notice of the threat or commencement of any
action, such indemnified party will, if a claim in respect thereof
is to be made against an indemnifying party under this Section 1.3,
promptly notify the indemnifying party in writing of the claim; but
the omission so to notify the indemnifying party will not relieve
it from any liability which it may have to any indemnified party
otherwise than under this Section 1.3.




        (ii) In case any such action is brought against any
indemnified party and such indemnified party seeks or intends to
seek indemnity from an indemnifying party, the indemnifying party
will be entitled to participate in, and, to the extent that it may
wish, to assume the defense thereof with counsel reasonably
satisfactory to such indemnified party and, after notice from the
indemnifying party to such indemnified party of its election so to
assume the defense thereof and the appointment of counsel
reasonably satisfactory to the indemnified party, the indemnifying
party shall not be liable to such indemnified party for any legal
expenses of other counsel or any other expenses, in each case
subsequently incurred by such indemnified party, in connection with
the defense thereof; provided, however, if the defendants in any
such action include both the indemnified party and the indemnifying
party and counsel to the indemnified party shall have delivered a
reasoned opinion in writing to the effect that representation of
both parties by the same counsel would be inappropriate due to
actual or likely conflicts of interest between them or legal
defenses available to the indemnified party that are different from
or additional to those available to the indemnifying party, then,
in that case, the indemnified party shall have the right to select
separate counsel to assume such legal defense and to otherwise
participate in the defense of such action on behalf of such
indemnified party and the reasonable fees and expenses of such
counsel for such indemnified party shall be reimbursed by the
indemnifying party. It is understood that the indemnifying party
shall not be liable for the fees and expenses of more than one
separate counsel (other than local counsel), approved by such
indemnifying party, for all indemnified parties.




        (d) Contribution. If the indemnification provided for in this
Section 1.3 is held by a court of competent jurisdiction to be
unavailable to an indemnified party with respect to any loss, liability,
claim, damage or expense referred to herein, then the indemnifying party,
in lieu of indemnifying such indemnified party hereunder, shall
contribute to the amount paid or payable by such indemnified party as a
result of such loss, liability, claim, damage or expense in such
proportion as is appropriate to reflect the relative fault of the
indemnifying party on the one hand and of the indemnified party on



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the other in connection with the statements or omissions that
resulted in such loss, liability, claim, damage or expense, as well as
any other relevant equitable considerations. The relative fault of the
indemnifying party and of the indemnified party shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission to state a material fact
relates to information supplied by the indemnifying party or by the
indemnified party and the parties’ relative intent, knowledge, access to
information, and opportunity to correct or prevent such statement or
omission. The amount paid or payable by a party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall
be deemed to include, subject to the limitations set forth in Section
1.3(c) hereof, any legal or other fees or expenses reasonably incurred by
such party in connection with any investigation or proceeding.




        The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 1.3(d) were determined by pro rata
allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in the immediately
preceding paragraph. Notwithstanding the provisions of this Section
1.3(d), in no event shall the Manager be required to contribute any
amount in excess of the aggregate fees received by the Manager pursuant
to the Investment Management Agreement. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities
Act) shall be entitled to contribution from any person or entity who was
not guilty of such fraudulent misrepresentation.




        (e) Surviving Obligations. The obligations of the Company and the
Manager under this Section 1.3 shall survive the completion of the
disposition of the Registrable Shares under this Section 1.



              1.4 Rule 144 Information. For such period as the Trust or the Plan holds
any Registrable Shares received pursuant to the Contribution, the Company shall
use its best efforts to file all reports required to be filed by it under the
Securities Act, the Exchange Act, and the rules and regulations thereunder, and
shall use its best efforts to take such further action to the extent required
to enable the Manager to sell the Registrable Shares pursuant to Rule 144 under
the Securities Act (as such rule may be amended from time to time).



     2. MISCELLANEOUS.



              2.1 Governing Law. This Agreement shall be governed by and construed and
interpreted in accordance with the laws of the State of New York, irrespective
of the choice of laws principles of the State of New York, as to all matters,
including matters of validity, construction, effect, enforceability,
performance and remedies.



              2.2 Force Majeure. Neither party will have any liability for damages or
delay due to fire, explosion, lightning, pest damage, power failure or surges,
strikes or labor disputes, water or flood, acts of God, the elements, war,
civil disturbances, acts of civil or military authorities or the public enemy,
acts or omissions of communications or other carriers, or any other cause
beyond a party’s reasonable control (other than that which arises from the
gross



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negligence or willful misconduct of such party), whether or not similar to
the foregoing, that prevent such party from materially performing its
obligations hereunder.




       2.3 Entire Agreement; Modification; Waivers. This Agreement constitutes
the entire agreement between the parties with respect to the subject matter
hereof and shall supersede all previous negotiation, commitments and writings
with respect to the matters discussed herein. This Agreement may not be
altered, modified or amended except by a written instrument signed by all
affected parties. The failure of any party to require the performance or
satisfaction of any term or obligation of this Agreement, or the waiver by any
party of any breach of this Agreement, shall not prevent subsequent enforcement
of such term or obligation or be deemed a waiver of any subsequent breach.



       2.4 Severability. The provisions of this Agreement are severable, and in
the event that any one or more provisions are deemed illegal or unenforceable
the remaining provisions shall remain in full force and effect unless the
deletion of such provision shall cause this Agreement to become materially
adverse to either party, in which event the parties shall use reasonable
commercial efforts to arrive at an accommodation that best preserves for the
parties the benefits and obligations of the offending provision.



       2.5 Notices. Except as otherwise expressly provided, any notice, request,
demand or other communication permitted or required to be given under this
Agreement shall be in writing, shall be sent by one of the following means to
the Company or the Manager at the addresses set forth below (or to such other
address as shall be designated hereunder by notice to the other parties and
persons receiving copies, effective upon actual receipt), and shall be deemed
conclusively to have been given: (a) on the first business day following the
day timely deposited with Federal Express (or other equivalent national
overnight courier) or United States Express Mail, with the cost of delivery
prepaid or for the account of the sender; (b) on the fifth business day
following the day duly sent by certified or registered United States mail,
postage prepaid and return receipt requested; or (c) when otherwise actually
received by the addressee on a business day (or on the next business day if
received after the close of normal business hours or on any non-business day).


If to the Company:



DTE Energy Company

2000 2nd Avenue

Detroit, Michigan 48226-1279

Fax: (313) 235-9470

Attn: Treasurer


With a copy to:



DTE Energy Company

2000 2nd Avenue

Detroit, Michigan 48226-1279

Fax: (313) 235-8500

Attn: General Counsel



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If to Manager:



U.S. Trust Company, National Association

600 Fourteenth Street, N.W.

Suite 400

Washington, DC 20005-3314

Fax: (202) 783-7054

Attn: Norman P. Goldberg


With a copy to:



James F. Carey, Esq.

Jones Day

2727 North Harwood Street

Dallas, Texas 75201

Fax: (214) 969-5100



     2.6 For purposes of Sections 1.1, 1.2 and 1.4 of this Agreement, the Trust
shall be considered a third party beneficiary hereof.



     2.7 Title and Headings. Titles and headings to sections herein are
inserted for convenience of reference only and are not intended to be part of
or to affect the meaning or interpretation of this Agreement.



     2.8 Execution in Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.



     IN WITNESS WHEREOF, each of the Manager and the Company has caused this
Agreement to be duly executed on its behalf by its duly authorized officer as
of the date first written above.



	 	 	 	 	 	 	 
	 	 	DTE ENERGY COMPANY
	 
	 	 	 	 	 	 
	

	 	By:
	 	 	 	 
	

	 	 	 	
 	 	 
	

	 	Name:
	 	 	 	 
	

	 	 	 	
 	 	 
	

	 	Title:
	 	 	 	 
	

	 	 	 	
 	 	 
	 
	 	 	 	 	 	 
	 	 	U.S. TRUST COMPANY, NATIONAL ASSOCIATION,
	 	 	solely in its capacity as duly appointed
	 	 	and acting investment manager of a
	 	 	segregated account held in the DTE Energy
	 	 	Company Affiliates Employee Benefits Plan

Master Trust
	 
	 	 	 	 	 	 
	

	 	By:
	 	 	 	 
	

	 	 	 	
 	 	 
	

	 	Name:
	 	Charles E. Wert	 	 
	

	 	Title:
	 	Executive Vice President	 	 








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