EX-10.1






20,000,000 Shares




CMS ENERGY CORPORATION




Common Stock ($0.01 par value)














Underwriting Agreement




March 30, 2005




To the Representatives named in Schedule I hereto




of the Underwriters named in Schedule II hereto



Ladies and Gentlemen:



CMS Energy Corporation, a Michigan corporation (the “Company”), proposes to issue and
sell to the several Underwriters (as defined in Section 12 hereof) the respective number of shares
of Common Stock ($0.01 par value per share) (“Common Stock”) of the Company (the
“Initial Securities”) set forth in Schedule II hereto, subject to the terms and
conditions set forth herein. The Underwriters have designated the Representatives (as defined in
Section 12 hereof) to execute this Agreement on their behalf and to act for them in the manner
provided in this Agreement.



The Company has agreed to grant to the Underwriters, severally and not jointly, an option (the
“Option”) to purchase all or any part of 3,000,000 additional shares of Common Stock (the
“Option Securities”), at a price per Option Security equal to the price per Initial
Security. The Option shall expire 30 days after the Time of Purchase (as defined in Section 2
hereof), and may be exercised in whole or in part from time to time. The Option may be exercised
upon notice by the Representatives to the Company setting forth the aggregate number of Option
Securities as to which the several Underwriters are then exercising the option and the time, date
and place of payment and delivery for such Option Securities. Any such time and date of payment
and delivery shall be determined by the Representatives, but shall not be later than seven full
business days after the exercise of said option, nor, in any event, prior to the Time of Purchase,
unless otherwise agreed upon by the Representatives and the Company. Any such time and date of
payment and delivery which falls after the Time of Purchase is referred to herein as a “Date of
Option Delivery”. If the Option is exercised as to all or any portion of the Option
Securities, each of the Underwriters, severally and not jointly, will purchase that proportion of
the aggregate number of Option Securities then being purchased which the aggregate number of
Initial Securities each such Underwriter has severally agreed to purchase as set forth on
Schedule II bears to the aggregate number of Initial Securities. As used herein, the term
“Securities” shall include the Initial Securities and all or any portion of any Option
Securities.



The Company has prepared and filed with the Securities and Exchange Commission (the
“Commission”), in accordance with the provisions of the Securities Act of 1933, as amended
(the “Act”), a registration statement on Form S-3 (Registration No. 333-51932) including a
prospectus relating to the Securities, and such registration statement has become effective under
the Act. The registration statement, at the time the most recent post-effective amendment thereto
became effective and as it may have been thereafter amended to the date of this Agreement
(including the documents then incorporated by reference therein) is herein referred to as the
“Registration Statement”. If the Company has filed, or will file, an abbreviated
registration statement to register additional Securities pursuant to Rule 462(b) under the Act (the
“Rule 462(b) Registration Statement”), then any reference herein to the term
“Registration Statement” shall be deemed to include such Rule 462(b) Registration
Statement. The prospectus forming a part of the Registration Statement at the time the
Registration Statement became effective (including the documents then incorporated by reference
therein) is herein referred to as the “Basic Prospectus”; provided, that, in the
event that the Basic Prospectus shall have been amended or revised prior to the date of this
Agreement, or if the Company shall have supplemented the Basic Prospectus by filing any documents
pursuant to Section 13, 14 or 15 of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), after the time the Registration Statement became effective and prior to
the date of this Agreement, which documents are deemed to be incorporated in the Basic Prospectus,
the term “Basic Prospectus” shall also mean such prospectus as so amended, revised or
supplemented. The Basic Prospectus, as it shall be revised or supplemented to reflect the final
terms of the offering and sale of the Securities by a prospectus supplement relating to the
Securities, and in the form to be filed with the Commission pursuant to Rule 424 under the Act, is
hereinafter referred to as the “Prospectus”. The Basic Prospectus as supplemented by the
Preliminary Prospectus Supplement dated March 28, 2005 relating to the Securities, in the form
filed with the Commission pursuant to Rule 424 under the Act, is hereinafter referred to as the
“Preliminary Prospectus”. Any reference herein to the terms “amend”, “amendment” or
“supplement” with respect to the Registration Statement or the Prospectus shall be deemed to
include amendments or supplements to the Registration Statement or Prospectus, as the case may be,
and documents incorporated by reference therein, after the date of this Agreement and prior to the
termination of the offering of the Securities by the Underwriters.



1. Purchase and Sale. Upon the basis of the representations and warranties and
subject to the terms and conditions herein set forth, the Company agrees to sell to the respective
Underwriters, severally and not jointly, and the respective Underwriters, severally and not
jointly, agree to purchase from the Company, at the purchase price of $11.8212 per share, the
respective number of shares of Initial Securities set opposite their names in Schedule II
hereto and the respective number of Option Securities determined as set forth above if and to the
extent the Option is exercised by the Representatives.



The Company is advised by the Representatives that the Securities may be offered by the
Underwriters from time to time in one or more transactions on the New York Stock Exchange
(“NYSE”) or on other national securities exchanges on which the Company’s Common Stock is
traded, in the over-the-counter market, through negotiated transactions or otherwise at market
prices prevailing at the time of the sale or at prices otherwise negotiated.



2. Payment and Delivery. Payment for the Securities shall be made to the Company in
federal or other immediately available funds in New York City (or such other place or places of
payment as shall be agreed upon by the Company and the Representatives in writing), upon the
delivery of the Securities at the offices of Pillsbury Winthrop LLP, 1540 Broadway, New York, New
York (or such other place or places of delivery as shall be agreed upon by the Company and the
Representatives) to the Representatives for the respective accounts of the Underwriters against
receipt therefor signed by the Representatives on behalf of themselves and as agent for the
Underwriters. Such payment and delivery shall be made at 10:00 A.M., New York time on April 5,
2005 (or on such later business day as shall be agreed upon by the Company and the Representatives
in writing), unless postponed in accordance with the provisions of Section 8 hereof. The day and
time at which payment and delivery for the Securities (without regard to any Option Securities) are
to be made is herein called the “Time of Purchase”.



In addition, in the event that the Underwriters have exercised their Option to purchase any or
all of the Option Securities, payment of the purchase price for, and delivery of, such Option
Securities shall be made at the above mentioned offices, or at such other place as shall be agreed
upon by the Representatives and the Company on the relevant Date of Option Delivery as specified in
the notice from the Representatives to the Company.



Delivery of the Securities shall be made in definitive, fully registered form in authorized
denominations registered in such names as the Representatives may request in writing to the Company
not later than two full business days prior to the Time of Purchase, or, if no such request is
received, in the names of the respective Underwriters for the respective number of shares of
Securities, set forth opposite the name of each Underwriter in Schedule II hereto, in
denominations selected by the Company. The certificates evidencing the Securities shall be
delivered at the Time of Purchase for the account of the Underwriters, with any transfer taxes
payable by the Company duly paid.



The Company agrees to make the Securities available for inspection by the Underwriters at
least 24 hours prior to the Time of Purchase, in definitive, fully registered form, and as
requested pursuant to the preceding paragraph.



3. Conditions of Underwriters’ Obligations. The several obligations of the
Underwriters hereunder are subject to the accuracy of the representations and warranties on the
date hereof and at and as of the Time of Purchase and any Date of Option Delivery, on the part of
the Company, and to the following other conditions.



(a) That all legal proceedings to be taken in connection with the issue and sale of the
Securities shall be reasonably satisfactory in form and substance to Pillsbury Winthrop LLP,
counsel to the Underwriters.



(b) That, at the Time of Purchase, the Underwriters shall be furnished with the following
opinions or letter, as the case may be, dated the day of the Time of Purchase:



(1) opinion of Robert C. Shrosbree, Esq., Assistant General Counsel of the Company,
substantially to the effect set forth in Exhibit A attached hereto;



(2) letter of Sidley Austin Brown & Wood LLP, special counsel to the Company, substantially to
the effect set forth in Exhibit B attached hereto; and



(3) opinion of Pillsbury Winthrop LLP, counsel to the Underwriters, as to such matters
relating to the Securities and the transactions contemplated hereby as the Underwriters may
reasonably request.



(c) (i) That, on the date hereof and on the date of the Time of Purchase, the Representatives
shall have received a letter from Ernst & Young LLP (“E&Y”) in form and substance
satisfactory to the Underwriters, dated as of such date, (A) confirming that they are an
independent registered public accounting firm with respect to the Company within the meaning of the
Act and the applicable published rules and regulations of the Commission thereunder, (B) stating
that in their opinion the financial statements examined by them and incorporated by reference in
the Prospectus complied as to form in all material respects with the applicable accounting
requirements of the Commission and (C) covering, as of a date not more than five days prior to the
date of such letter, such other matters as the Underwriters reasonably request.



(ii) That, on the date hereof and, with respect to PricewaterhouseCoopers LLP only, on the
date of the Time of Purchase, the Representatives shall have received a letter from each of
PricewaterhouseCoopers LLP and Price Waterhouse, each in form and substance satisfactory to the
Underwriters, dated as of such date, confirming that (A)(i) in the case of PricewaterhouseCoopers
LLP, they are an independent registered public accounting firm with respect to the Company and the
Midland Cogeneration Venture Limited Partnership and (ii) in the case of Price Waterhouse, they are
independent public accountants with respect to the Company and Jorf Lasfar Energy Company S.C.A.,
each within the meaning of the Act and the applicable published rules and regulations of the
Commission thereunder, (B) stating that in each of their opinions the financial statements examined
by them and incorporated by reference in the Prospectus complied as to form in all material
respects with the applicable accounting requirements of the Commission, including the applicable
published rules and regulations of the Commission, and (C) covering, as of a date not more than
five days prior to the date of such letter, such other matters as the Underwriters reasonably
request.



(d) That, subsequent to the date hereof or, if earlier, the dates as of which information is
given in the Prospectus (exclusive of any amendment or supplement thereto), there shall not have
been (i) any change or decrease specified in the letter or letters referred to in Section 3(c)
hereof or (ii) any change, or any development involving a prospective change, in or affecting the
condition (financial or otherwise), prospects, earnings, business or properties of the Company and
its subsidiaries taken as a whole, except as set forth in or contemplated in the Prospectus
(exclusive of any amendment or supplement thereto), the effect of which, in any case referred to in
clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to
make it impractical or inadvisable to proceed with the offering or delivery of the Securities as
contemplated in the Prospectus (exclusive of any amendment or supplement thereto).



(e) That no stop order suspending the effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that purpose shall have been initiated or
threatened by the Commission.



(f) That, at the Time of Purchase, the Company shall have delivered to the Representatives a
certificate of an executive officer of the Company to the effect that, to the best of his
knowledge, information and belief, (i) there shall have been no material adverse change in the
condition (financial or otherwise), earnings, business, properties or prospects of the Company from
that set forth in the Prospectus (other than changes referred to in or contemplated by the
Prospectus) and (ii) the representations and warranties of the Company in this Agreement are true
and correct on and as of the Time of Purchase with the same effect as if made at the Time of
Purchase, and the Company has complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied hereunder at or prior to the Time of Purchase.



(g) That the Company shall have performed such of its obligations under this Agreement as are
to be performed at or before the Time of Purchase by the terms hereof.



(h) That any additional documents or agreements reasonably requested by the Underwriters or
their counsel to permit the Underwriters to perform their obligations or permit their counsel to
deliver opinions hereunder shall have been provided to them.



(i) That the Company shall have complied with the provisions of Section 4(e) hereof with
respect to the furnishing of the Prospectus.



(j) That between the date hereof and the day of the Time of Purchase there has been no
downgrading of the investment ratings of any of the Company’s securities or of Consumers Energy
Company’s first mortgage bonds by Standard & Poor’s Ratings Group, a division of The McGraw Hill
Companies, Inc., Moody’s Investors Service, Inc. or Fitch, Inc., and neither the Company nor
Consumers Energy Company shall have been placed on “credit watch” or “credit review” with negative
implications by any of such statistical rating organizations if any of such occurrences shall, in
the reasonable judgment of the Representatives, after reasonable inquiries on the part of the
Representatives, impair the marketability of the Securities.



(k) That any filing of the Prospectus and any supplements thereto required pursuant to Rule
424 under the Act have been made in compliance with Rule 424 under the Act in the time periods
provided by Rule 424 under the Act.



(l) That the Securities, at the Time of Purchase, shall have been duly listed, subject to
notice of issuance, on the NYSE.



(m) That, at the Time of Purchase, the Company shall have furnished to the Representatives a
letter substantially in the form of Exhibit C hereto addressed to the Representatives from
each person listed in Schedule III hereto.



(n) That, in the event that the Underwriters exercise their Option to purchase all or any
portion of the Option Securities, the representations and warranties of the Company contained
herein and the statements in any certificates furnished by the Company hereunder shall be true and
correct as of each Date of Option Delivery, and, at the relevant Date of Option Delivery, the
Representatives shall receive:



(1) a certificate, dated such Date of Option Delivery, of an executive officer of the Company
confirming that the certificate delivered at the Time of Purchase pursuant to Section 3(f) hereof
remains true and correct as of such Date of Option Delivery;



(2) opinions or a letter, as the case may be, of Robert C. Shrosbree, Esq., Assistant General
Counsel of the Company, Sidley Austin Brown & Wood LLP, counsel to the Company, and Pillsbury
Winthrop LLP, counsel to the Underwriters, dated such Date of Option Delivery, relating to the
Option Securities and otherwise to the same effect as the opinions and letter required by Section
3(b) hereof; and



(3) letters from E&Y, PricewaterhouseCoopers LLP and Price Waterhouse, each dated such Date of
Option Delivery, substantially in the same form and substance as the letters furnished to the
Representatives pursuant to Section 3(c) hereof, except that the date specified in Section
3(c)(i)(C) and 3(c)(ii)(C) hereof shall be a date not more than five days prior to such Date of
Option Delivery.



4. Certain Covenants of the Company. In further consideration of the agreements of
the Underwriters herein contained, the Company covenants as follows.



(a) To promptly transmit copies of the Prospectus, and any amendments or supplements thereto,
to the Commission for filing pursuant to Rule 424 under the Act.



(b) During the period when a prospectus relating to any of the Securities is required to be
delivered under the Act by any Underwriter or any dealer, the Company will file promptly all
documents required to be filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of
the Exchange Act; and the Company will promptly notify the Underwriters of any written notice given
to the Company by any of the rating organizations referred to in Section 3(j) hereof of any
intended decrease in any rating of any securities of the Company or of any intended change in any
such rating that does not indicate the direction of the possible change of any such rating, in each
case by any such rating organization.



(c) To deliver to each of the Representatives a conformed copy of the Registration Statement
and any amendments thereto (including all exhibits thereto) and full and complete sets of all
comments, if any, of the Commission or its staff and all responses thereto with respect to the
Registration Statement and any amendments thereto and to furnish to the Representatives, for each
of the Underwriters, conformed copies of the Registration Statement and any amendments thereto
without exhibits.



(d) As soon as the Company is advised thereof, the Company will advise the Representatives and
confirm the advice in writing of: (i) the effectiveness of any amendment to the Registration
Statement (and the Company agrees to use its best efforts to cause any post-effective amendments to
the Registration Statement to become effective as promptly as possible); (ii) any request made by
the Commission for amendments to the Registration Statement or Prospectus or for additional
information with respect thereto; (iii) the suspension of qualification of the Securities for sale
under blue sky or state securities laws; and (iv) the entry of a stop order suspending the
effectiveness of the Registration Statement or of the initiation or threat or any proceedings for
that purpose and the Company will use every reasonable effort to prevent the issuance of any such
stop order and, if such a stop order should be entered by the Commission, to make every reasonable
effort to obtain the lifting or removal thereof.



(e) To deliver to the Underwriters, without charge, as soon as practicable, and from time to
time during such period of time after the date of the Prospectus as they are required by law to
deliver a prospectus, as many copies of the Prospectus (as supplemented or amended if the Company
shall have made any supplements or amendments thereto) as the Representatives may reasonably
request; and in case any Underwriter is required to deliver a prospectus after the expiration of
nine months after the date of the Prospectus, to furnish to the Representatives, upon request, at
the expense of such Underwriter, a reasonable quantity of a supplemental prospectus or of
supplements to the Prospectus complying with Section 10(a)(3) of the Act.



(f) For such period of time as the Underwriters are required by law or customary practice to
deliver a prospectus in respect of the Securities, if any event shall have occurred as a result of
which it is necessary to amend or supplement the Prospectus in order to make the statements
therein, in light of the circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it becomes necessary to amend or supplement the Prospectus to comply with law, to
forthwith prepare and file with the Commission (subject to Section 4(l) hereof) an appropriate
amendment or supplement to the Prospectus and deliver to the Underwriters, without charge, such
number of copies thereof as may be reasonably requested.



(g) During the period when a prospectus relating to any of the Securities is required to be
delivered under the Act by any Underwriter or any dealer, the Company will comply, at its own
expense, with all requirements imposed on the Company by the Act, as now and hereafter amended, and
by the rules and regulations of the Commission thereunder, as from time to time in force, so far as
necessary to permit the continuance of sales of or dealing in the Securities during such period in
accordance with the provisions hereof and as contemplated by the Prospectus.



(h) To make generally available to the Company’s security holders, as soon as practicable, an
“earning statement” (which need not be audited by independent public accountants) covering a
twelve-month period commencing after the effective date of the Registration Statement and ending
not later than 15 months thereafter, which shall comply in all material respects with and satisfy
the provisions of Section 11(a) of the Act and Rule 158 under the Act.



(i) To use its best efforts to qualify the Securities for offer and sale under the securities
or blue sky laws of such jurisdictions as the Representatives may designate and to pay (or cause to
be paid), or reimburse (or cause to be reimbursed) the Underwriters and their counsel for,
reasonable filing fees and expenses in connection therewith (including the reasonable fees and
disbursements of counsel to the Underwriters and filing fees and expenses paid and incurred prior
to the date hereof); provided, however, that the Company shall not be required to
qualify to do business as a foreign corporation or as a securities dealer or to file a general
consent to service of process or to file annual reports or to comply with any other requirements
deemed by the Company to be unduly burdensome.



(j) To pay all expenses, fees and taxes (other than transfer taxes on sales by the respective
Underwriters and the expenses referred to in Section 5 hereof), in connection with the issuance and
delivery of the Securities, including, without limitation, (i) the fees and expenses of the
Company’s counsel and independent accountants, (ii) the cost of preparing stock certificates, (iii)
the costs and charges of any transfer agent and any registrar, (iv) all expenses incurred by the
Company in connection with any “road show” presentation to potential investors and (v) all expenses
and application fees related to the listing of the Securities on the NYSE, except that the Company
shall be required to pay the fees and disbursements (other than disbursements referred to in
Section 4(i) hereof) of Pillsbury Winthrop LLP, counsel to the Underwriters only in the events
provided in Section 4(k) hereof, the Underwriters hereby agreeing to pay such fees and
disbursements in any other event, and that except as provided in Section 4(k) hereof, the Company
shall not be responsible for any out-of-pocket expenses of the Underwriters in connection with
their services hereunder.



(k) If the Underwriters shall not take up and pay for the Securities (i) due to the failure of
the Company to comply with any of the conditions specified in Section 3 hereof, to pay the
reasonable fees and disbursements of Pillsbury Winthrop LLP, counsel to the Underwriters and to
reimburse the Underwriters for their other reasonable out-of-pocket expenses not to exceed a total
of $75,000, incurred in connection with the financing contemplated by this Agreement, such amounts
including all amounts incurred in connection with any roadshow, provided that such amounts are
documented in writing to the Company, or (ii) due to termination in accordance with the provisions
of Section 9 hereof prior to the Time of Purchase, to pay the reasonable fees and disbursements of
Pillsbury Winthrop LLP, counsel to the Underwriters.



(l) Prior to the termination of the offering of the Securities, to not amend or supplement the
Registration Statement or Prospectus (including the Basic Prospectus) unless the Company has
furnished the Representatives and counsel to the Underwriters with a copy for their review and
comment a reasonable time prior to filing and has reasonably considered any comments of the
Representatives, and not to make any such amendment or supplement to which such counsel shall
reasonably object on legal grounds in writing after consultation with the Representatives.



(m) To furnish the Representatives with copies of all documents required to be filed with the
Commission pursuant to Section 13, 14 or 15(d) of the Exchange Act subsequent to the time the
Registration Statement becomes effective and prior to the termination of the offering of the
Securities.



(n) So long as may be required by law for distribution of the Securities by the Underwriters
or by any dealers that participate in the distribution thereof, the Company will comply with all
requirements under the Exchange Act relating to the timely filing with the Commission of its
reports pursuant to Section 13 or 15(d) of the Exchange Act and of its proxy statements pursuant to
Section 14 of the Exchange Act.



(o) The Company will use its best efforts to effect the listing of the Securities prior to the
Time of Purchase, on the NYSE subject only to official notice of issuance.



(p) The Company will not for a period of 60 days following the date hereof, without the prior
written consent of the Representatives: offer, pledge, sell or contract to sell any Common Stock;
sell any option or contract to purchase any Common Stock; purchase any option or contract to sell
any Common Stock; grant any option, right or warrant to sell any Common Stock; lend or otherwise
dispose of or transfer any Common Stock; file a registration statement related to the Common Stock;
or enter into any swap or other agreement or transaction that transfers, in whole or in part, the
economic consequence of ownership of Common Stock whether any such swap or transaction is to be
settled by delivery of common stock, in cash or otherwise; provided, however, that
the Company may issue shares of Common Stock upon conversion or settlement of any warrants
outstanding, the Company’s 73/4% Convertible Trust Preferred Securities, 3.375% Convertible Senior
Notes Due 2023, 4.50% Cumulative Convertible Preferred Stock or 2.875% Convertible Senior Notes Due
2024 in accordance with their respective terms, and under any continuous equity program, stock
purchase plan, performance incentive stock plan, employee stock ownership plan, employee savings
and incentive plan and charitable foundation donation.



(q) The Company will not take, directly or indirectly, any action designed to or which has
constituted or which might reasonably be expected to cause or result, under the Exchange Act or
otherwise, in stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the Securities.



(r) The Company will cause the proceeds of the issuance and sale of the Securities to be
applied for the purposes described in the Prospectus.



5. Covenant of the Underwriters. The Underwriters agree that they will file in a
timely manner all necessary reports of sales of securities made to Canadian purchasers with the
securities regulatory authorities of the relevant Canadian provinces. The Underwriters also agree
that they will pay any fees and expenses associated with the preparation and filing of the Canadian
sales reports.



6. Representations and Warranties of the Company. The Company represents and warrants
to, and agrees with, each of the Underwriters as follows.



(a) The Company meets the requirements for the use of Form S-3 under the Act; the Registration
Statement has been declared effective by the Commission under the Act and meets the requirements
set forth in paragraph (a)(1)(ix) or (a)(1)(x) of Rule 415 under the Act and complies in all other
respects with such Rule 415; a true and correct copy of the Registration Statement as amended to
the date hereof has been delivered to each of the Representatives and to the Representatives for
each of the Underwriters (except that copies delivered for the Underwriters excluded exhibits to
such Registration Statement); any filing of the Preliminary Prospectus pursuant to Rule 424 has
been made, and any filing of the Prospectus and any supplements thereto required pursuant to Rule
424 will be made in the manner required by Rule 424 and within the time period required by Rule
424; and no stop order suspending the effectiveness of the Registration Statement or any part
thereof has been issued under the Act and no proceedings for such purposes have been instituted or
threatened or are pending before the Commission, and any request on the part of the Commission for
additional information has been complied with by the Company. On the effective date of the
Registration Statement, the Registration Statement and the Basic Prospectus complied, on its issue
date the Preliminary Prospectus complied, and on its issue date the Prospectus will comply, in all
material respects with the applicable provisions of the Act and the related rules and regulations
of the Commission; the Registration Statement on its effective date did 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 not misleading, and the Basic Prospectus on its issue
date, and the Preliminary Prospectus on its issue date, did not, and the Prospectus, as of its
issue date and, as amended or supplemented, if applicable, as of the Time of Purchase, will not,
contain any untrue statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were made, not misleading,
except that the Company makes no warranty or representation to any Underwriter with respect to any
statements or omissions made therein in reliance upon and in conformity with information furnished
in writing to the Company by, or through, the Representatives on behalf of, any Underwriter
expressly for use therein (as set forth in Section 7(b) hereof).



(b) The documents incorporated by reference in the Registration Statement, the Preliminary
Prospectus, the Basic Prospectus and the Prospectus, when they were filed (or, if an amendment with
respect to any such document was filed, when such amendment was filed) with the Commission,
conformed in all material respects to the requirements of the Exchange Act and the rules and
regulations of the Commission promulgated thereunder, and any further documents so filed and
incorporated by reference will, when they are filed with the Commission, conform in all material
respects to the requirements of the Exchange Act and the rules and regulations of the Commission
promulgated thereunder; none of such documents, when it was filed (or, if an amendment with respect
to any such document was filed, when such amendment was filed), contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were made, not
misleading; and no such further document, when it is filed, will contain an untrue statement of a
material fact or will omit to state a material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they are made, not
misleading.



(c) The Company has been duly organized and is validly existing as a corporation in good
standing under the laws of the State of Michigan and has all requisite authority to own or lease
its properties and conduct its business as described in the Prospectus and to consummate the
transactions contemplated hereby, and is duly qualified to transact business and is in good
standing in each jurisdiction in which the conduct of its business as described in the Prospectus
or its ownership or leasing of property requires such qualification, except to the extent that the
failure to be so qualified or be in good standing would not have a material adverse effect on the
Company and its subsidiaries taken as a whole (a “Material Adverse Effect”).



(d) Each significant subsidiary (as defined in Rule 405 under the Act, and hereinafter called
a “Significant Subsidiary”) of the Company has been duly organized and is validly existing
and in good standing under the laws of the jurisdiction of its organization, has all requisite
authority to own or lease its properties and conduct its business as described in the Prospectus
and is duly qualified to transact business and is in good standing in each jurisdiction in which
the conduct of its business as described in the Prospectus or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so qualified or be in good
standing would not have a Material Adverse Effect.



(e) The shares of capital stock of the Company outstanding prior to the issuance of the
Securities have been duly authorized and are validly issued, fully paid and non-assessable.



(f) The Securities have been duly authorized by the Company for issuance and sale to the
Underwriters pursuant to this Agreement and, when issued and delivered by the Company pursuant to
this Agreement against payment of the consideration set forth herein, will be duly and validly
issued, fully paid and non-assessable; the Securities conform in all material respects to all
statements relating thereto contained in the Prospectus and such description conforms to the rights
set forth in the instruments defining the same; the Company knows of no reason that any holder of
the Securities would be subject to personal liability solely by reason of being such a holder; and
the issuance of the Securities is not subject to any preemptive or other similar rights of any
securityholder of the Company or any of its subsidiaries.



(g) This Agreement has been duly authorized, executed and delivered by the Company, and the
Company has full corporate power and authority to enter into this Agreement.



(h) Except for the outstanding shares of preferred stock of Consumers Energy Company, the
9.00% Trust Preferred Securities of Consumers Energy Company Financing IV and the 7.75% Convertible
Quarterly Income Preferred Securities of CMS Energy Trust I, all of the outstanding capital stock
of each of Consumers Energy Company and CMS Enterprises Company is owned directly or indirectly by
the Company, free and clear of any security interest, claim, lien or other encumbrance (except as
disclosed in the Prospectus) or preemptive rights, and there are no outstanding rights (including,
without limitation, preemptive rights), warrants or options to acquire, or instruments convertible
into or exchangeable for, any shares of capital stock or other equity interest in any of Consumers
Energy Company and CMS Enterprises Company or any contract, commitment, agreement, understanding or
arrangement of any kind relating to the issuance of any such capital stock, any such convertible or
exchangeable securities or any such rights, warrants or options.



(i) Each of the Company and Consumers Energy Company has all necessary consents,
authorizations, approvals, orders, certificates and permits of and from, and has made all
declarations and filings with, all federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, to own, lease, license and use
its properties and assets and to conduct its business in the manner described in the Prospectus,
except to the extent that the failure to obtain or file would not have a Material Adverse Effect.



(j) No order, license, consent, authorization or approval of, or exemption by, or the giving
of notice to, or the registration with, any federal, state, local or other governmental department,
commission, board, bureau, agency or instrumentality, and no filing, recording, publication or
registration in any public office or any other place, was or is now required to be obtained by the
Company to authorize its execution or delivery of, or the performance of its obligations under,
this Agreement or the Securities, except such as have been obtained or may be required under state
securities or blue sky laws or as referred to in the Prospectus.



(k) None of the issuance or sale of the Securities, or the execution or delivery by the
Company of, or the performance by the Company of its obligations under, this Agreement or the
Securities, did or will conflict with, result in a breach of any of the terms or provisions of, or
constitute a default or require the consent of any party under, the Company’s Restated Articles of
Incorporation or Amended and Restated Bylaws, any material agreement or instrument to which it is a
party, any existing applicable law, rule or regulation or any judgment, order or decree of any
government, governmental instrumentality or court, domestic or foreign, having jurisdiction over
the Company or any of its properties or assets, or did or will result in the creation or imposition
of any lien on the Company’s properties or assets.




(l) The Company has an authorized capitalization as set forth in the Prospectus.



(m) Except as disclosed in the Prospectus, there is no action, suit, proceeding, inquiry or
investigation (at law or in equity or otherwise) pending or, to the knowledge of the Company,
threatened against the Company or any subsidiary, by any governmental authority that (i) questions
the validity, enforceability or performance of this Agreement or the Securities or (ii) if
determined adversely, is likely to have a Material Adverse Effect or materially adversely affect
the ability of the Company to perform its obligations hereunder or the consummation of the
transactions contemplated by this Agreement.



(n) There has not been any material and adverse change, or any development involving a
prospective change, in or affecting the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken as a whole, from that set forth
or incorporated by reference in the Prospectus (other than changes referred to in or contemplated
by the Prospectus).



(o) Except as set forth in the Prospectus, no event or condition exists that constitutes, or
with the giving of notice or lapse of time or both would constitute, a default or any breach or
failure to perform by the Company or any of its Significant Subsidiaries, taken as a whole, in any
material respect under any indenture, mortgage, loan agreement, lease or other material agreement
or instrument to which the Company or any of its Significant Subsidiaries is a party or by which it
or any of their respective properties may be bound.



(p) The Company, after giving effect to the offering and sale of the Securities, will not be
an “investment company” within the meaning of the Investment Company Act of 1940, as amended.



(q) The Company’s chief executive officer and chief financial officer are responsible for
establishing and maintaining the Company’s disclosure controls and procedures. The Company’s
management, under the direction of the Company’s principal executive and financial officers, has
evaluated the effectiveness of the Company’s disclosure controls and procedures as of a date within
90 days of the filing of the Company’s most recent annual report on Form 10-K. Based on such
evaluation, the Company’s chief executive officer and chief financial officer have concluded that
the Company’s disclosure controls and procedures are effective to ensure that material information
was presented to them and properly disclosed. There have been no significant changes in the
Company’s internal controls or in other factors that could significantly affect internal controls
subsequent to such evaluation.



(r) The Company (i) is a “holding company”, as such term is defined in the Public Utility
Holding Company Act of 1935, as amended, and (ii) is currently exempt from all provisions of the
Public Utility Holding Company Act of 1935, as amended, except Section 9(a)(2) thereof.



(s) Except as described in the Prospectus and except as would not, singly or in the aggregate,
result in a Material Adverse Effect, (A) neither the Company nor any of its subsidiaries is in
violation of any federal, state, local or foreign statute, law, rule, regulation, ordinance, code,
policy or rule of common law or any judicial or administrative interpretation thereof, including
any judicial or administrative order, consent, decree or judgment, relating to pollution or
protection of human health, the environment (including, without limitation, ambient air, surface
water, groundwater, land surface or subsurface strata) or wildlife, including, without limitation,
laws and regulations relating to the release or threatened release of chemicals, pollutants,
contaminants, wastes, toxic substances, hazardous substances, petroleum or petroleum products,
asbestos-containing materials or mold (collectively, “Hazardous Materials”) or to the
manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of
Hazardous Materials (collectively, “Environmental Laws”), (B) the Company and its
subsidiaries have all permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements, (C) there are no pending or
threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigation or proceedings relating to any
Environmental Law against the Company or any of its subsidiaries and (D) there are no events or
circumstances that would reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or governmental body or agency,
against or affecting the Company or any of its subsidiaries relating to Hazardous Materials or any
Environmental Laws.



(t) The financial statements and the related notes thereto of the Company and its consolidated
subsidiaries incorporated by reference in the Registration Statement and the Prospectus comply in
all material respects with the applicable requirements of the Act and the Exchange Act and the
rules and regulations of the Commission thereunder, as applicable, and present fairly the financial
position of the Company and its subsidiaries as of the dates indicated and the results of their
operations and the changes in their cash flows for the periods specified; such financial statements
have been prepared in conformity with generally accepted accounting principles applied on a basis
substantially consistent throughout the periods covered thereby, except where an exception thereto
has been adequately described therein, and the supporting schedules incorporated by reference in
the Registration Statement present fairly the information required to be stated therein; and the
other financial information incorporated by reference in the Registration Statement and the
Prospectus has been derived from the accounting records of the Company and its subsidiaries, or, in
the case of data not derivable from the accounting records of the Company and its subsidiaries,
other data in the possession of the Company and its subsidiaries, and presents fairly the
information shown thereby; and the pro forma financial information and the related
notes thereto incorporated by reference in the Registration Statement and the Prospectus have been
prepared in accordance with the applicable requirements of the Act and the Exchange Act, as
applicable, and the assumptions underlying such pro forma financial information are
reasonable and are set forth in the Registration Statement and the Prospectus.




7. Indemnification.



(a) The Company agrees, to the extent permitted by law, to indemnify and hold harmless each of
the Underwriters and each person, if any, who controls any such Underwriter within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act, against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may become subject under the
Act or otherwise, and to reimburse the Underwriters and such controlling person or persons, if any,
for any legal or other expenses incurred by them in connection with defending any action, suit or
proceeding (including governmental investigations) as provided in Section 7(c) hereof, insofar as
such losses, claims, damages, liabilities or actions, suits or proceedings (including governmental
investigations) arise out of or are based upon any untrue statement or alleged untrue statement of
a material fact contained in the Registration Statement, any Preliminary Prospectus as of its issue
date (if used prior to the date of the Basic Prospectus), the Basic Prospectus (if used prior to
the date of the Prospectus), the Prospectus, or, if the Prospectus shall be amended or
supplemented, in the Prospectus as so amended or supplemented (if such Prospectus or such
Prospectus as amended or supplemented is used after the period of time referred to in Section 4(e)
hereof, it shall contain or be used with such amendments or supplements as the Company deems
necessary to comply with Section 10(a) of the Act), or arise out of or are based upon any omission
or alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, except insofar as such losses, claims, damages,
liabilities or actions arise out of or are based upon any such untrue statement or alleged untrue
statement or omission or alleged omission which was made in such Preliminary Prospectus, Basic
Prospectus, Registration Statement or Prospectus, or in the Prospectus as so amended or
supplemented, in reliance upon and in conformity with information furnished in writing to the
Company by, or through the Representatives on behalf of, any Underwriter expressly for use therein,
and except that the Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability or action, suit or proceeding arises out of or is based upon any such
untrue statement or alleged untrue statement or omission or alleged omission made in the
Preliminary Prospectus if copies of the Prospectus were timely delivered to the Underwriters
pursuant to Section 4 hereof and a copy of the Prospectus (as then amended or supplemented if the
Company shall have furnished any amendments or supplements thereto) was not sent or given by or on
behalf of the Underwriters to the person asserting such loss, claim, damage or liability or action,
suit or proceeding and if the Prospectus (as so amended or supplemented) would have cured the
defect giving rise to such loss, claim, damage or liability or action, suit or proceeding.



The Company’s indemnity agreement contained in this Section 7(a), and the covenants,
representations and warranties of the Company contained in this Agreement, shall remain in full
force and effect regardless of any investigation made by or on behalf of any person, and shall
survive the delivery of and payment for the Securities hereunder, and the indemnity agreement
contained in this Section 7 shall survive any termination of this Agreement. The liabilities of
the Company in this Section 7(a) are in addition to any other liabilities of the Company under this
Agreement or otherwise.



(b) Each Underwriter agrees, severally and not jointly, to the extent permitted by law, to
indemnify, hold harmless and reimburse the Company, its directors and such of its officers as shall
have signed the Registration Statement, each other Underwriter, and each person, if any, who
controls the Company or any such other Underwriter within the meaning of Section 15 of the Act or
Section 20 of the Exchange Act, to the same extent and upon the same terms as the indemnity
agreement of the Company set forth in Section 7(a) hereof, but only with respect to alleged untrue
statements or omissions made in the Registration Statement, the Basic Prospectus, any Preliminary
Prospectus or in the Prospectus, as amended or supplemented (if applicable), in reliance upon and
in conformity with information furnished in writing to the Company by such Underwriter expressly
for use therein.



The indemnity agreement on the part of each Underwriter contained in this Section 7(b) and the
representations and warranties of such Underwriter contained in this Agreement shall remain in full
force and effect regardless of any investigation made by or on behalf of the Company or any other
person, and shall survive the delivery of and payment for the Securities hereunder, and the
indemnity agreement contained in this Section 7(b) shall survive any termination of this Agreement.
The liabilities of each Underwriter in this Section 7(b) are in addition to any other liabilities
of such Underwriter under this Agreement or otherwise. The Company acknowledges that (i) the
statements set forth in the last paragraph of the cover page of each of the Preliminary Prospectus
and the Prospectus regarding delivery of the Securities, (ii) the list of Underwriters and their
respective participation in the sale of the Securities set forth under the heading “Underwriting”
in the Preliminary Prospectus and Prospectus, (iii) the sentences related to concessions and
reallowances set forth under the heading “Underwriting” in the Preliminary Prospectus and
Prospectus, (iv) the paragraph related to stabilization, over-allotment, syndicate covering
transactions and penalty bids set forth under the heading “Underwriting” in the Preliminary
Prospectus and Prospectus and (v) the paragraph related to the United Kingdom and The Netherlands
set forth under the heading “Underwriting” constitute the only information furnished in writing by
or on behalf of the several Underwriters for inclusion in the Preliminary Prospectus or the
Prospectus.



(c) If a claim is made or an action, suit or proceeding (including governmental
investigations) is commenced or threatened against any person as to which indemnity may be sought
under Section 7(a) or 7(b) hereof, such person (the “Indemnified Person”) shall notify the
person against whom such indemnity may be sought (the “Indemnifying Person”) promptly after
any assertion of such claim threatening to institute an action, suit or proceeding or if such an
action, suit or proceeding is commenced against such Indemnified Person, promptly after such
Indemnified Person shall have been served with a summons or other first legal process, giving
information as to the nature and basis of the claim. Failure to so notify the Indemnifying Person
shall not, however, relieve the Indemnifying Person from any liability which it may have on account
of the indemnity under Section 7(a) or 7(b) hereof if the Indemnifying Person has not been
prejudiced in any material respect by such failure. Subject to the immediately succeeding
sentence, the Indemnifying Person shall assume the defense of any such litigation or proceeding,
including the employment of counsel and the payment of all expenses, with such counsel being
designated, subject to the immediately succeeding sentence, in writing by the Representatives in
the case of parties indemnified pursuant to Section 7(b) hereof and by the Company in the case of
parties indemnified pursuant to Section 7(a) hereof. Any Indemnified Person shall have the right
to participate in such litigation or proceeding and to retain its own counsel, but the fees and
expenses of such counsel shall be at the expense of such Indemnified Person unless (i) the
Indemnifying Person and the Indemnified Person shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include
(x) the Indemnifying Person and (y) the Indemnified Person and, in the written opinion of counsel
to such Indemnified Person, representation of both parties by the same counsel would be
inappropriate due to actual or likely conflicts of interest between them, in either of which cases
the reasonable fees and expenses of counsel (including disbursements) for such Indemnified Person
shall be reimbursed by the Indemnifying Person to the Indemnified Person. If there is a conflict
as described in clause (ii) above, and the Indemnified Persons have participated in the litigation
or proceeding utilizing separate counsel whose fees and expenses have been reimbursed by the
Indemnifying Person and the Indemnified Persons, or any of them, are found to be solely liable,
such Indemnified Persons shall repay to the Indemnifying Person such fees and expenses of such
separate counsel as the Indemnifying Person shall have reimbursed. It is understood that the
Indemnifying Person shall not, in connection with any litigation or proceeding or related
litigation or proceedings in the same jurisdiction as to which the Indemnified Persons are entitled
to such separate representation, be liable under this Agreement for the reasonable fees and
out-of-pocket expenses of more than one separate firm (together with not more than one appropriate
local counsel) for all such Indemnified Persons. Subject to the next paragraph, all such fees and
expenses shall be reimbursed by payment to the Indemnified Persons of such reasonable fees and
expenses of counsel promptly after payment thereof by the Indemnified Persons.



In furtherance of the requirement above that fees and expenses of any separate counsel for the
Indemnified Persons shall be reasonable, the Underwriters and the Company agree that the
Indemnifying Person’s obligations to pay such fees and expenses shall be conditioned upon the
following:



(1) in case separate counsel is proposed to be retained by the Indemnified Persons pursuant to
clause (ii) of the preceding paragraph, the Indemnified Persons shall in good faith fully consult
with the Indemnifying Person in advance as to the selection of such counsel;



(2) reimbursable fees and expenses of such separate counsel shall be detailed and supported in
a manner reasonably acceptable to the Indemnifying Person (but nothing herein shall be deemed to
require the furnishing to the Indemnifying Person of any information, including, without
limitation, computer print-outs of lawyers’ daily time entries, to the extent that, in the judgment
of such counsel, furnishing such information might reasonably be expected to result in a waiver of
any attorney-client privilege); and



(3) the Company and the Representatives shall cooperate in monitoring and controlling the fees
and expenses of separate counsel for Indemnified Persons for which the Indemnifying Person is
liable hereunder, and the Indemnified Person shall use reasonable effort to cause such separate
counsel to minimize the duplication of activities as between themselves and counsel to the
Indemnifying Person.



The Indemnifying Person shall not be liable for any settlement of any litigation or proceeding
effected without the written consent of the Indemnifying Person, but if settled with such consent
or if there be a final judgment for the plaintiff, the Indemnifying Person agrees, subject to the
provisions of this Section 7, to indemnify the Indemnified Person from and against any loss,
damage, liability or expenses by reason of such settlement or judgment. The Indemnifying Person
shall not, without the prior written consent of the Indemnified Persons, effect any settlement of
any pending or threatened litigation, proceeding or claim in respect of which indemnity has been
properly sought by the Indemnified Persons hereunder, unless such settlement includes an
unconditional release by the claimant of all Indemnified Persons from all liability with respect to
claims which are the subject matter of such litigation, proceeding or claim and does not include a
statement as to or an admission of fault, culpability or a failure to act, by or on behalf of any
Indemnified Person.



(d) If the indemnification provided for in Section 7 above is unavailable to or insufficient
to hold harmless an Indemnified Person under such Section 7 in respect of any losses, claims,
damages or liabilities (or actions, suits or proceedings (including governmental investigations) in
respect thereof) referred to therein, then each Indemnifying Person under this Section 7 shall
contribute to the amount paid or payable by such Indemnified Person as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such proportion as is appropriate
to reflect the relative benefits received by the Indemnifying Person on the one hand and the
Indemnified Person on the other from the offering of the Securities. If, however, the allocation
provided by the immediately preceding sentence is not permitted by applicable law, then each
Indemnifying Person shall contribute to such amount paid or payable by such Indemnified Person in
such proportion as is appropriate to reflect not only such relative benefits but also the relative
fault of each Indemnifying Person, if any, on the one hand and the Indemnified Person on the other
in connection with the statements or omissions which resulted in such losses, claims, damages or
liabilities (or actions, suits or proceedings (including governmental investigations) in respect
thereof), as well as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting expenses) received by the
Company and the total discounts or commissions received by the Underwriters, in each case as set
forth in the table on the cover page of the Prospectus, bear to the aggregate public offering price
of the Securities. The relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company on the one hand or
the Underwriters on the other and the parties’ relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this Section 7 were
determined by pro rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the equitable
considerations referred to above in this Section 7. The amount paid or payable by an Indemnified
Person as a result of the losses, claims, damages or liabilities (or actions, suits or proceedings
(including governmental proceedings) in respect thereof) referred to above in this Section 7 shall
be deemed to include any legal or other expenses reasonably incurred by such Indemnified Person in
connection with investigating or defending any such actions, suits or proceedings (including
governmental proceedings) or claims, provided that the provisions of this Section 7 have been
complied with (in all material respects) in respect of any separate counsel for such Indemnified
Person. Notwithstanding the provisions of this Section 7, no Underwriter shall be required to
contribute any amount in excess of the purchase discount or commission applicable to the Securities
purchased by such Underwriter hereunder. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The Underwriters’ obligations in this Section 7
to contribute are several in proportion to their respective underwriting obligations and not joint.



The agreement with respect to contribution contained in this Section 7(d) shall remain in full
force and effect regardless of any investigation made by or on behalf of the Company or any
Underwriter, and shall survive delivery of and payment for the Securities hereunder and any
termination of this Agreement.



8. Substitution of Underwriters. If any Underwriter under this Agreement shall fail
or refuse (otherwise than for some reason sufficient to justify in accordance with the terms
hereof, the termination of its obligations hereunder) to purchase the Securities which it had
agreed to purchase on the Time of Purchase or any applicable Date of Option Delivery, the
Representatives shall immediately notify the Company and the Representatives and the other
Underwriters may, within 36 hours of the giving of such notice, determine to purchase, or to
procure one or more other members of the National Association of Securities Dealers, Inc.
(“NASD”) (or, if not members of the NASD, who are foreign banks, dealers or institutions
not registered under the Exchange Act and who agree in making sales to comply with the NASD’s Rules
of Fair Practice), satisfactory to the Company, to purchase, upon the terms herein set forth, the
number of shares of Securities which the defaulting Underwriter had agreed to purchase. If any
non-defaulting Underwriter or Underwriters shall determine to exercise such right, the
Representatives shall give written notice to the Company of such determination within 36 hours
after the Company shall have received notice of any such default, and thereupon the Time of
Purchase or Date of Option Delivery, as the case may be, shall be postponed for such period, not
exceeding three business days, as the Company shall determine. If, in the event of such a default,
the Representatives shall fail to give such notice, or shall within such 36-hour period give
written notice to the Company that no other Underwriter or Underwriters, or others, will exercise
such right, then this Agreement may be terminated by the Company, upon like notice given to the
Representatives within a further period of 36 hours. If in such case the Company shall not elect
to terminate this Agreement, it shall have the right, irrespective of such default:



(a) to require such non-defaulting Underwriters to purchase and pay for the respective number
of shares of Securities which they had severally agreed to purchase hereunder, as herein above
provided, and, in addition, the number of shares of Securities which the defaulting Underwriter
shall have so failed to purchase up to a number of shares thereof equal to one-ninth (1/9) of the
respective number of shares of Securities which such non-defaulting Underwriters have otherwise
agreed to purchase hereunder; and/or



(b) to procure one or more other members of the NASD (or, if not members of the NASD, who are
foreign banks, dealers or institutions not registered under the Exchange Act and who agree in
making sales to comply with the NASD’s Rules of Fair Practice) to purchase, upon the terms herein
set forth, the number of shares of Securities which such defaulting Underwriter had agreed to
purchase, or that portion thereof which the remaining Underwriters shall not be obligated to
purchase pursuant to Section 8(a) hereof.



In the event the Company shall exercise its rights under Section 8(a) and/or Section 8(b)
hereof, the Company shall give written notice thereof to the Representatives within such further
period of 36 hours, and thereupon the Time of Purchase or the Date of Option Delivery, as the case
may be, shall be postponed for such period, not exceeding five business days, as the Company shall
determine. In the event the Company shall be entitled to but shall not elect to exercise its
rights under Section 8(a) and/or Section 8(b) hereof, the Company shall be deemed to have elected
to terminate this Agreement.



Any action taken by the Company under this Section 8 shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under this Agreement.
Termination by the Company under this Section 8 shall be without any liability on the part of the
Company or any non-defaulting Underwriter.



In the computation of any period of 36 hours referred to in this Section 8, there shall be
excluded a period of 24 hours in respect of each Saturday, Sunday or legal holiday which would
otherwise be included in such period of time.



9. Termination of Agreement. This Agreement shall become effective upon the execution
and delivery of this Agreement by the parties hereto.



This Agreement may be terminated at any time prior to the Time of Purchase or any applicable
Date of Option Delivery by the Representatives if, prior to such time, any of the following events
shall have occurred: (i) trading in the Company’s Common Stock shall have been suspended by the
Commission or the NYSE or trading in securities generally on the NYSE shall have been suspended or
limited or minimum prices shall have been established on such exchange; (ii) a banking moratorium
shall have been declared either by U.S. federal or New York State authorities; (iii) any material
disruption of securities settlement or clearance services; or (iv) there shall have occurred any
outbreak or escalation of hostilities, declaration by the United States of a national emergency or
war or other calamity, crisis or disruption in financial markets, the effect of which on the
financial markets of the United States is such as to impair, in the judgment of the
Representatives, the marketability of the Securities.



If the Representatives elect to terminate this Agreement, as provided in this Section 9, the
Representatives will promptly notify the Company and each other Underwriter by telephone or
telecopy, confirmed by letter. If this Agreement shall not be carried out by any Underwriter for
any reason permitted hereunder, or if the sale of the Securities to the Underwriters as herein
contemplated shall not be carried out because the Company is not able to comply with the terms
hereof, the Company shall not be under any obligation under this Agreement and shall not be liable
to any Underwriter or to any member of any selling group for the loss of anticipated profits from
the transactions contemplated by this Agreement and the Underwriters shall be under no liability to
the Company nor be under any liability under this Agreement to one another.



Notwithstanding the foregoing, the provisions of Section 4(i), 4(k), 7 and 8 shall survive
termination of this Agreement.



10. Notices. All notices hereunder shall, unless otherwise expressly provided, be in
writing and be delivered at or mailed to the following addresses or be sent by telecopy as follows:
(i) if to the Underwriters or the Representatives, to the Representatives at the address or number,
as appropriate, designated in Schedule I hereto; and (ii) if to the Company, to CMS Energy
Corporation, One Energy Plaza, Jackson, Michigan 49201, Attention: Executive Vice President and
Chief Financial Officer (Telecopy 517-788-2186).



11. Parties in Interest. The agreement herein set forth has been and is made solely
for the benefit of the Underwriters, the Company (including the directors thereof and such of the
officers thereof as shall have signed the Registration Statement), and the controlling persons, if
any, referred to in Section 7 hereof, and their respective successors, assigns, executors and
administrators, and, except as expressly otherwise provided in Section 8 hereof, no other person
shall acquire or have any right under or by virtue of this Agreement.



12. Definition of Certain Terms. The term “Underwriters”, as used herein,
shall be deemed to mean the several persons, firms or corporations named in Schedule II
hereto (including the Representatives herein mentioned, if so named), and the term
“Representatives”, as used herein, shall be deemed to mean the representative or
representatives designated by, or in the manner authorized by, the Underwriters in Schedule
I hereto, which Representatives are hereby designated. If the firm or firms listed in
Schedule I hereto are the same as the firm or firms listed in Schedule II hereto,
then the terms “Underwriters” and “Representatives”, as used herein, shall each be
deemed to refer to such firm or firms. The term “successors” as used in this Agreement shall not
include any purchaser, as such purchaser, of any of the Securities from any of the respective
Underwriters.



13. Governing Law. This Agreement shall be governed by, and construed in accordance
with, the laws of the State of New York.



14. Counterparts. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an original, but all such
respective counterparts shall together constitute one and the same instrument.

1


If the
foregoing is in accordance with your understanding, please sign and return to us counterparts
hereof, and upon the acceptance hereof by you, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Underwriters and the Company.




Very truly yours,




CMS ENERGY CORPORATION




By:_/s/ Thomas J. Webb     




	 	 	 	Name: Tom Webb






Title: EVP & CFO



Confirmed and accepted as of the date first written above:



CITIGROUP GLOBAL MARKETS INC.



J.P. MORGAN SECURITIES INC.



DEUTSCHE BANK SECURITIES INC.



WACHOVIA CAPITAL MARKETS, LLC



GOLDMAN, SACHS & CO.



KEYBANC CAPITAL MARKETS, A DIVISION OF MCDONALD INVESTMENTS INC.



WELLS FARGO SECURITIES, LLC



By: CITIGROUP GLOBAL MARKETS INC.



By:_/s/ David Blackford




	 	 	 	Name: David Blackford

Title: Vice President





By: J.P. MORGAN SECURITIES INC.



By:_/s/ Yaw Asamoah-Duodu




	 	 	 	Name: Yaw Asamoah-Duodo

Title: Vice President





By: DEUTSCHE BANK SECURITIES INC.



By:_/s/ Paul Murdock




	 	 	 	Name: Paul Murdock






Title: Director



By:_/s/ Eyal Hahn




	 	 	 	Name: Eyal Hahn






Title: Director



By: WACHOVIA CAPITAL MARKETS, LLC



By:_/s/ Mark Waxman




	 	 	 	Name: Mark Waxman






Title: Director



2




SCHEDULE I




Citigroup Global Markets Inc.



388 Greenwich Street



New York, New York 10013



Attention: General Counsel



Telecopy: 212-816-7912



J.P. Morgan Securities Inc.



270 Park Avenue



New York, New York 10017



Attention: Henry Wilson



Telecopy: 212-622-8358



Deutsche Bank Securities Inc.



60 Wall Street



New York, New York 10005



Attention: Equity Capital Markets – Corporate and Investment Bank



Telecopy: 212-797-0070



Wachovia Capital Markets, LLC



301 South College Street, 4th Floor



Charlotte, North Carolina 28288-0735



Attention: General Counsel



Telecopy: 704-715-6099



3




SCHEDULE II




	 	 	 	 	 
	 	 	Number of Shares of
	Underwriters	 	Initial Securities
	Citigroup Global Markets Inc....................................	 	4,500,000
	J.P. Morgan Securities Inc......................................	 	4,500,000
	Deutsche Bank Securities Inc....................................	 	4,500,000
	Wachovia Capital Markets, LLC...................................	 	4,500,000
	Goldman, Sachs & Co.
	 	 	1,000,000	 
	 
	 	 	 	 
	KeyBanc Capital Markets, a division of McDonald Investments Inc.
	 	 	500,000	 
	 
	 	 	 	 
	Wells Fargo Securities, LLC
	 	 	500,000	 
	 
	 	 	 	 
	Total
	 	 	20,000,000	 
	 
	 	 	 	 







4




SCHEDULE III





1. Merribel S. Ayres




2. John F. Drake




3. Thomas W. Elward




4. Earl D. Holton




5. David W. Joos




6. David G. Mengebier




7. Michael T. Monahan




8. Joseph F. Paquette Jr.




9. William U. Parfet




10. Percy A. Pierre




11. John G. Russell




12. S. Kinnie Smith, Jr.




13. Kenneth L. Way




14. Thomas J. Webb




15. Ken Whipple




16. John B. Yasinsky



5




1.EXHIBIT A




[FORM OF OPINION OF ROBERT C. SHROSBREE, ESQ.]





	 	1.	 	The Company is a duly organized, validly existing corporation in good standing under the laws
of the State of Michigan.






	 	2.	 	All legally required corporate proceedings in connection with the authorization, issuance and
validity of the Securities and the sale of the Securities by the Company in accordance with
the Underwriting Agreement have been taken; and no approval, authorization, consent or order
of any governmental regulatory body is required with respect to the issuance and sale of the
Securities (other than in connection with or in compliance with the provisions of the
securities or blue sky laws of any state, as to which I express no opinion).






	 	3.	 	The statements made in the Prospectus under the captions “Description of Securities”, “Plan
of Distribution” and “Underwriting” constitute summaries of legal matters or documents
referred to therein and are accurate in all material respects; the Securities conform in all
material respects to all statements relating thereto contained in the Prospectus and such
description conforms to the rights set forth in the instruments defining the same.






	 	4.	 	The Registration Statement was declared effective by the Commission; the Registration
Statement, at the date it was declared effective by the Commission and at the date of the most
recent amendment to the Registration Statement, and the Prospectus, at the time it was filed
with the Commission pursuant to Rule 424 under the Act, and each document incorporated in the
Prospectus as such document was originally filed pursuant to the Exchange Act (except for (i)
the financial statements and schedules contained or incorporated by reference therein
(including the notes thereto and the auditors’ reports thereon) and (ii) the other financial
information contained or incorporated by reference therein, as to which I express no opinion),
complied as to form when so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder; and the Registration Statement
has become, and at the Time of Purchase is, effective under the Act and, to the best of my
knowledge after due inquiry, no proceedings for a stop order with respect thereto are
threatened or pending under the Act.





5. The Underwriting Agreement has been duly authorized, executed and delivered by the Company.




	 	6.	 	The Securities have been duly authorized by the Company for issuance and sale to the
Underwriters pursuant to the Underwriting Agreement and, when issued and delivered by the
Company pursuant to the Underwriting Agreement against payment of the consideration set forth
in the Underwriting Agreement, will be duly and validly issued, fully paid and non-assessable;
the issuance of the Securities is not subject to the preemptive or other similar rights of any
securityholder of the Company or any of its subsidiaries.






	 	7.	 	The form of certificate used to evidence the Securities complies in all material respects
with all applicable statutory requirements, with any applicable requirements of the Restated
Articles of Incorporation and the Amended and Restated Bylaws of the Company and the
requirements of the NYSE.






	 	8.	 	The issuance and sale of the Securities in accordance with the terms of the Underwriting
Agreement do not violate the provisions of the Restated Articles of Incorporation or the
Amended and Restated Bylaws of the Company, and will not result in a breach of any of the
terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument to which the Company is a party.






	 	9.	 	The Company is not an “investment company” or a company “controlled” by an “investment
company” within the meaning of the Investment Company Act of 1940, as amended.






	 	10.	 	The Company (i) is a “holding company”, as such term is defined in the Public Utility Holding
Company Act of 1935, as amended, and (ii) is currently exempt from all provisions of the
Public Utility Holding Company Act of 1935, as amended, except Section 9(a)(2) thereof.






	 	11.	 	Except for the outstanding shares of preferred stock of Consumers Energy Company, the 9.00%
Trust Preferred Securities of Consumers Energy Company Financing IV and the 7 3/4% Convertible
Quarterly Income Preferred Securities of CMS Energy Trust I, all of the outstanding capital
stock of each of Consumers Energy Company and CMS Enterprises Company is owned directly or
indirectly by the Company, free and clear of any security interest, claim, lien or other
encumbrance (except as disclosed in the Prospectus) or preemptive rights, and there are no
outstanding rights (including, without limitation, preemptive rights), warrants or options to
acquire, or instruments convertible into or exchangeable for, any shares of capital stock or
other equity interest in any of Consumers Energy Company and CMS Enterprises Company or any
contract, commitment, agreement, understanding or arrangement of any kind relating to the
issuance of any such capital stock, any such convertible or exchangeable securities or any
such rights, warrants or options.






	 	12.	 	The Company has an authorized capitalization as set forth in the Prospectus and all of the
issued shares of capital stock of the Company have been duly and validly authorized and issued
and are fully paid and non-assessable.






	 	13.	 	Nothing has come to my attention that would lead me to believe that the Prospectus (other
than (i) the operating statistics, financial statements and schedules contained or
incorporated by reference therein (including the notes thereto and the auditors’ reports
thereon) and (ii) the other financial or statistical information contained or incorporated by
reference therein, as to which I express no opinion), as of its date or at the date hereof,
contained or contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.





6




EXHIBIT B




[FORM OF LETTER OF SIDLEY AUSTIN BROWN & WOOD LLP]




We have participated in conferences with officers and other representatives of the Company,
including certain of the Company’s internal counsel, the Company’s independent public accountants
and representatives of and counsel to the Underwriters, during the course of which the contents of
the Prospectus and related matters were discussed. Although we are not passing upon, and do not
assume responsibility for, the accuracy, completeness or fairness of the statements included or
incorporated by reference in the Registration Statement or the Prospectus and have not made any
independent check or verification thereof, no facts have come to our attention that have caused us
to believe that the Registration Statement (other than the financial statements, financial data and
supporting schedules included or incorporated by reference therein or excluded therefrom, as to
which we express no belief), at the time it became effective, contained an untrue statement of a
material fact or omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that the Prospectus (other than the financial
statements, financial data and supporting schedules included or incorporated by reference therein
or excluded therefrom, as to which we express no belief), as of its date and as of the date hereof,
included or includes an untrue statement of a material fact or omitted or omits to state a material
fact necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.



7




EXHIBIT C




[Letterhead of Officer or Director of the Company]




     , 2005



Citigroup Global Markets Inc.



J.P. Morgan Securities Inc.



Deutsche Bank Securities Inc.



Wachovia Capital Markets, LLC




As Representatives of the Underwriters Referenced Herein



c/o Citigroup Global Markets Inc.



388 Greenwich Street



New York, New York 10013



c/o J.P. Morgan Securities Inc.



270 Park Avenue



New York, New York 10017



c/o Deutsche Bank Securities Inc.



60 Wall Street



New York, New York 10005



c/o Wachovia Capital Markets, LLC



301 South College Street, 4th Floor



Charlotte, North Carolina 28288-0735



Ladies and Gentlemen:



This letter is being delivered to you in connection with a proposed Underwriting Agreement
(the “Underwriting Agreement”) between CMS Energy Corporation, a Michigan corporation (the
“Company”), and you as representative of a group of Underwriters named therein, whereby the
Underwriters have agreed to purchase shares of its Common Stock ($0.01 par value) (the
“Securities”) of the Company pursuant to the Underwriting Agreement. Terms used but not
defined in this letter shall have the meanings ascribed to such terms in the Underwriting
Agreement.



In order to induce you and the other Underwriters to purchase the Securities pursuant to the
Underwriting Agreement, the undersigned will not, without the prior written consent of the
Representatives: offer, pledge, sell or contract to sell any Common Stock; sell any option or
contract to purchase any Common Stock; purchase any option or contract to sell any Common Stock;
grant any option, right or warrant to sell any Common Stock; lend or otherwise dispose of or
transfer any Common Stock; file a registration statement related to the Common Stock; or enter into
any swap or other agreement or transaction that transfers, in whole or in part, the economic
consequence of ownership of Common Stock whether any such swap or transaction is to be settled by
delivery of Common Stock, in cash or otherwise, for a period of 60 days after the date of the
Underwriting Agreement, other than shares of Common Stock disposed of as bona fide gifts approved
by the Representatives, and up to 10,000 shares of Common Stock for any one executive officer or
director of the Company with an aggregate limit of 100,000 shares of Common Stock for all executive
officers and directors of the Company.



If for any reason the Underwriting Agreement shall be terminated prior to the Time of
Purchase, the agreement set forth above shall likewise be terminated.




Very truly yours,




By:




Name:




Title:




8