REGISTRATION RIGHTS AGREEMENT
Exhibit 4.3
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 0000 0xx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-0000 (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
0000 0xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Fax: (000) 000-0000
Attn: Treasurer
With a copy to:
DTE Energy Company
0000 0xx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Fax: (000) 000-0000
Attn: General Counsel
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If to Manager:
U.S. Trust Company, National Association
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxx 000
Xxxxxxxxxx, XX 00000-0000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxxx
With a copy to:
Xxxxx X. Xxxxx, Esq.
Xxxxx Day
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Fax: (000) 000-0000
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: | Xxxxxxx X. Xxxx | |||||
| Title: | Executive Vice President | |||||
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