EX-10.(S)






Exhibit (10)(s)




Change in Control Agreement




Tier IV




 









 





Tier IV Change in Control as of August, 2008




Contents




	 	 	 	 	 
	Article 1. Establishment, Term, and Purpose
	 	 	1	 
	 
	Article 2. Definitions
	 	 	2	 
	 
	Article 3. Change in Control Severance Benefits
	 	 	9	 
	 
	Article 4. Notice of Termination; Resignation as Officer and Director
	 	 	12	 
	 
	Article 5. Restrictive Covenants and Clawback
	 	 	13	 
	 
	Article 6. Excise Tax Equalization Payment
	 	 	16	 
	 
	Article 7. Dispute Resolution and Notice
	 	 	17	 
	 
	Article 8. Successors and Assignment
	 	 	18	 
	 
	Article 9. Miscellaneous
	 	 	19	 
	 
	 	 	 	 
	Exhibit A. General Release Agreement
	 	 	23	 







 








 




Tier IV Change in Control as of August, 2008


Change in Control Agreement




     THIS CHANGE IN CONTROL AGREEMENT (hereinafter referred to as this “Agreement”) is made,
entered into, and effective as of                     ,
20       (hereinafter referred to as the “Effective Date”), by and
between                     ,
a Michigan corporation, (hereinafter referred to as the
“Employer”) and
                     (hereinafter
referred to as the “Executive”).


     WHEREAS, the Board of Directors of CMS Energy Corporation, a Michigan corporation (hereinafter
referred to as “CMS Energy Corporation”) has approved entering into change in control agreements
with certain key executives as being necessary and advisable for the success of CMS Energy
Corporation;



     WHEREAS,
the Executive is currently employed at
                    ,
by the Employer in a key management position
as                     ;


     WHEREAS, the Board of Directors of CMS Energy Corporation wants to provide the Executive with
a measure of financial security in the event of a change in control of CMS Energy Corporation as
defined in this Agreement; and



     WHEREAS, both the Executive and the Employer seek to have any proposal involving a change in
control of CMS Energy Corporation as defined in this Agreement be considered by the Executive
objectively and with reference only to the business interests of CMS Energy Corporation and its
shareholders.



     NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements
of the Executive and the Employer and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the Executive and the Employer, intending to be
legally bound, agree as follows:



Article 1. Establishment, Term, and Purpose




     This Agreement will commence on the Effective Date and shall continue in effect until December
31, 2010. However, at December 31, 2010, and, if extended, at the end of each additional year
thereafter, the term of this Agreement shall be extended automatically for one (1) additional year,
unless the Committee (as defined in Section 2.13 herein) delivers notice six (6) months prior to
the end of such term, or extended term, to the Executive, stating that the Agreement will not be
extended. In such case, the Agreement will terminate at the end of the term, or extended term,
then in progress. However, in the event of a Change in Control (as defined in Section 2.10 herein)
of CMS Energy Corporation, the term of this Agreement shall automatically be extended to the
earlier of (i) the date that is two (2) years from the date of the Change in Control if the current
term of this Agreement has less than two (2) full years



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remaining until its expiration or (ii) the date the Executive attains age 65. If the term of
this Agreement is not extended, the Employer is not obligated to pay any severance benefits under
Section 3.2 herein for a Change in Control that happens after the expiration of the term of this
Agreement. In addition, notwithstanding the above, any obligation of the Employer arising during
the term of this Agreement shall survive the termination of this Agreement until paid in full,
provided that the Executive has provided or received a Notice of Termination within the applicable
time limitations under Section 2.26 herein. Notwithstanding the forgoing, the obligations of the
Executive under Article 5 herein shall continue in effect and survive the expiration of the term of
this Agreement.




Article 2. Definitions




     Whenever used in this Agreement, the following terms shall have the meanings set forth below:




	 	2.1	 	“Affiliate” has the meaning set forth in Rule 12b-2 under the Exchange Act.
	 
	 	2.2	 	“Agreement” means this agreement, including the “whereas” clauses and Exhibit A.
	 
	 	2.3	 	“Base Annual Salary” means the greater of the Executive’s full annual salary,
whether or not any portion thereof is paid on a deferred basis, at: (i) the Effective
Date of Termination, or (ii) at the date of the Change in Control. It does not include
any incentive compensation in any form, bonuses of any type or any other form of monetary
or nonmonetary compensation other than salary.
	 
	 	2.4	 	“Beneficial Owner” has the meaning set forth in Rule 13d-3 under the Exchange Act.
	 
	 	2.5	 	“Beneficiary” means the persons or Entities designated by the Executive pursuant to
Section 9.5 herein.
	 
	 	2.6	 	“Benefit plan clawback provision” has the meaning set forth in Section 5.1(g)
herein.
	 
	 	2.7	 	“Bonus-based payment” has the meaning set forth in Section 5.1(g) herein.
	 
	 	2.8	 	“Board” means the Board of Directors of CMS Energy Corporation.
	 
	 	2.9	 	“Cause” is determined solely by the Committee in the exercise of good faith and
reasonable judgment, and means the occurrence of any one or more of the following:






	 	(a)	 	The continued failure by the Executive to substantially perform his or
her duties of employment (other than any such failure resulting from the
Executive’s Disability), after a demand for substantial performance is delivered to
the Executive that identifies the manner in which the Committee believes that the
Executive has not substantially performed his or her duties,




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	 	 	 	and the Executive has failed to remedy the situation within a reasonable period
of time specified by the Committee which shall not be less than 30 days; or
	 
	 	(b)	 	The Executive’s (i) indictment for a felony or (ii) a conviction for a
misdemeanor involving fraud, embezzlement, theft, misappropriation, or failure to
be truthful; or
	 
	 	(c)	 	The Executive’s (i) gross negligence, (ii) failure or refusal, on
request or demand by the Employer or any governmental authority, to provide
testimony to or to cooperate with any governmental regulatory authority, or any
other similar non-cooperation by the Executive, (iii) willful engaging in
misconduct materially or demonstrably injurious to the business or reputation (by
adverse publicity or otherwise) of CMS Energy Corporation or its Affiliates,
monetarily or otherwise, or (iv) violation of a material provision of the
Employer’s code of conduct and code of ethics, including but not limited to
violations of the Employer’s policies relating to substance abuse and
discrimination; or
	 
	 	(d)	 	The Executive’s breach of the terms of Article 5 herein.






	 	 	 	However, for purposes of clause (c), no act or failure to act on the Executive’s part
shall be considered “willful” if done, or omitted to be done, by the Executive (i) in
good faith and (ii) with reasonable belief that his or her action or omission was in the
best interest of CMS Energy Corporation or its Affiliates.
	 
	 	2.10	 	“Change in Control” means a change in control of CMS Energy Corporation, and shall
be deemed to have occurred upon the first to occur of any of the following events:






	 	(a)	 	Any Person is or becomes the Beneficial Owner, directly or indirectly,
of securities of CMS Energy Corporation (not including in the securities
beneficially owned by such Person any securities acquired directly from CMS Energy
Corporation or its Affiliates) representing thirty percent (30%) or more of the
combined voting power for the election of directors of CMS Energy Corporation’s
then outstanding equity securities with the power under ordinary circumstances to
vote for the election of directors, excluding any Person who becomes such a
Beneficial Owner in connection with a transaction described in clause (i) of
Section 2.10 (c) below; or
	 
	 	(b)	 	The following individuals cease for any reason to constitute a majority
of directors then serving: individuals who, on the Effective Date, constitute the
Board and any new director (other than a director whose initial assumption of
office is in connection with an actual or threatened election contest, including
but not limited to a consent solicitation, relating to the election of directors of
CMS Energy Corporation) whose appointment or election by the Board or nomination
for election by CMS Energy Corporation’s stockholders was





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	 	 	 	approved or recommended by a vote of at least two-thirds (2/3) of the directors
then still in office who either were directors on the Effective Date or whose
appointment, election or nomination for election was previously so approved or
recommended; or
	 
	 	(c)	 	The consummation of a merger or consolidation of CMS Energy Corporation
or any direct or indirect subsidiary of CMS Energy Corporation with any other
corporation or other entity, other than: (i) any such merger or consolidation which
involves either CMS Energy Corporation or any such subsidiary and would result in
the voting securities of CMS Energy Corporation outstanding immediately prior
thereto continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity or any parent thereof), in
combination with the ownership of any trustee or other fiduciary holding securities
under an employee benefit plan of CMS Energy Corporation or its Affiliates, at
least fifty-one percent (51%) of the combined voting power of the voting securities
of CMS Energy Corporation or the surviving entity or any parent thereof outstanding
immediately after such merger or consolidation and immediately following which the
individuals who comprise the Board immediately prior thereto constitute at least a
majority of the board of directors of CMS Energy Corporation, the entity surviving
such merger or consolidation or, if CMS Energy Corporation or the entity surviving
such merger is then a subsidiary, the ultimate parent thereof; or (ii) a merger or
consolidation effected to implement a recapitalization of CMS Energy Corporation
(or similar transaction) in which no Person is or becomes the Beneficial Owner,
directly or indirectly, of securities of CMS Energy Corporation (not including in
the securities beneficially owned by such Person any securities acquired directly
from CMS Energy Corporation or its Affiliates) representing thirty percent (30%) or
more of the combined voting power of CMS Energy Corporation’s then outstanding
securities; or
	 
	 	(d)	 	Either (1) the stockholders of CMS Energy Corporation approve a plan of
complete liquidation or dissolution of CMS Energy Corporation and such plan is
consummated, or (2) there is consummated an agreement for the sale, transfer or
disposition by CMS Energy Corporation of all or substantially all of CMS Energy
Corporation’s assets (or any transaction having a similar effect). For purposes of
clause (d)(2), (i) the sale, transfer or disposition of a majority of the shares of
common stock of Consumers Energy Company shall constitute a sale, transfer or
disposition of substantially all of the assets of CMS Energy Corporation and (ii)
the sale, transfer or disposition of subsidiaries or affiliates of CMS Energy
Corporation, singly or in combinations, or their assets, only qualifies as a Change
in Control if it satisfies the substantiality test contained in that clause and the
Board of CMS Energy Corporation’s determination in that regard is final. In
addition, for purposes of clause (d)(2), the sale, transfer or disposition of
assets has to be in a transaction or series of transactions closing within six (6)
months after the





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	 	 	 	closing of the first transaction in the series, other than with an entity in
which at least fifty-one (51%) of the combined voting power of the voting
securities is owned by stockholders of CMS Energy Corporation in substantially
the same proportions as their ownership of CMS Energy Corporation immediately
prior to such transaction or transactions and immediately following which the
individuals who comprise the Board immediately prior thereto constitute at least
a majority of the board of directors of the entity to which such assets are
sold, transferred or disposed or, if such entity is a subsidiary, the ultimate
parent thereof.






	 	 	 	Notwithstanding the foregoing clauses (a), (c) and (d), a “Change in Control” shall not
be deemed to have occurred by virtue of the consummation of any transaction or series
of integrated transactions closing within six (6) months after the closing of the first
transaction in the series immediately following which the record holders of the common
stock of CMS Energy Corporation immediately prior to such transaction or series of
transactions continue to have substantially the same proportionate ownership in an
entity which owns all or substantially all of the assets of CMS Energy Corporation
immediately following such transaction or series of transactions.






	 	2.11	 	“Change in Control Severance Benefits” has the meaning ascribed to the same in
Article 3 herein.
	 
	 	2.12	 	“Code” means the United States Internal Revenue Code of 1986, as amended, and any
successors thereto.
	 
	 	2.13	 	“Committee” means the Compensation and Human Resources Committee of the Board or
any other committee appointed by the Board to perform the functions of the Compensation
and Human Resources Committee. The Committee is responsible for the administration of
this Agreement and shall interpret and apply the provisions of this Agreement.
Notwithstanding the above, the Committee may obtain and rely upon advice from
consultants, attorneys and advisors of its choice in making determinations concerning
this Agreement.
	 
	 	2.14	 	“Direct Competitor” has the meaning set forth in Section 5.1(a) herein.
	 
	 	2.15	 	“Disability” means a determination by the insurer or third-party administrator
under an individual and/or group disability policy covering the Executive that the
Executive is totally and permanently disabled as defined in the policy, or if there is no
such coverage, then a disability that satisfies the requirements of total and permanent
disability under Section 22(e) of the Code.
	 
	 	2.16	 	“Effective Date” means the date of this Agreement set forth in the first paragraph
of this Agreement.
	 
	 	2.17	 	“Effective Date of Termination” means the first day of any month following the date
on which a Qualifying Termination occurs, as provided under Section 2.28





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	 	 	 	herein, which triggers the payment of Change in Control Severance Benefits hereunder.
Such first day of such month shall be specified in the Notice of Termination. If
Executive is otherwise eligible for retirement, he or she may elect to retire on the
Effective Date of Termination without waiving any Change in Control Severance Benefits
to which he or she may be entitled pursuant to this Agreement.
	 
	 	2.18	 	“Employer” means the corporation named in the first paragraph of this Agreement as
the Employer.
	 
	 	2.19	 	“Entity” means any corporation, partnership, limited liability company, joint
venture, sole proprietorship or firm.
	 
	 	2.20	 	“Exchange Act” means the United States Securities Exchange Act of 1934, as amended.
	 
	 	2.21	 	“Excise Tax” has the meaning set forth in Section 6.1 herein.
	 
	 	2.22	 	“Executive” means the individual named in the first paragraph of this Agreement.
	 
	 	2.23	 	“Exempt Person” has the meaning set forth in Section 5.1(b) herein.
	 
	 	2.24	 	“Good Reason” exists only on the date of a Change in Control or during the
twenty-four (24) months which follow a Change in Control and means, without the
Executive’s express prior consent, the occurrence of any one or more of the following:






	 	(a)	 	The assignment to the Executive of duties materially inconsistent
with the Executive’s position (including status, offices, titles, and reporting
requirements), authority, duties or responsibilities as in effect on the Effective
Date, or any action by the Employer which results in a material diminution of the
Executive’s position, authority, duties, or responsibilities as constituted as of
the Effective Date (excluding an isolated, insubstantial, and inadvertent action
which is remedied by the Employer promptly after receipt of notice thereof given
by the Executive), provided, however that a Change in Control which results in the
Employer becoming controlled by another Entity, after which the Executive’s
position, authority, duties or responsibilities do not, taken as a whole, change
(except in respect of the Persons or Entities to which he or she reports or the
duties he or she performs due to becoming controlled by such other Entity), shall
not constitute a material change in the Executive’s position, authority, duties or
responsibilities; or
	 
	 	(b)	 	Materially reducing the Executive’s Base Salary; or
	 
	 	(c)	 	Materially reducing the Executive’s targeted annual incentive
opportunity; or




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	 	(d)	 	Materially reducing the Executive’s targeted long-term incentive
opportunity; or
	 
	 	(e)	 	A material failure to maintain the Executive’s aggregate amount of
benefits under, or relative level of participation in, employee benefit or
retirement plans, policies, practices, or arrangements of a material nature
available to employees of CMS Energy Corporation and its Affiliates and in which
the Executive participates as of the date of a Change in Control; or
	 
	 	(f)	 	A material breach of this Agreement by the Employer which is not
remedied by the Employer after receipt of notice of such breach delivered by the
Executive to the Committee; or
	 
	 	(g)	 	Any successor company fails or refuses to assume the obligations owed
to Executive under this Agreement in their entirety, as required by Section 8.1
herein; or
	 
	 	(h)	 	The Executive is required to be based at a location in excess of
thirty-five (35) miles from both (i) the Executive’s primary residence and (ii)
the location of the Executive’s principal job location or office, both immediately
prior to a Change in Control, except for required travel on the Employer’s or CMS
Energy Corporation’s business to an extent substantially consistent with the
Executive’s prior business travel obligations.






	 	 	 	Notwithstanding the above, (i) no amendment of, or termination and replacement of, any
annual or long term incentive plan, or benefit or retirement plan, policy, practice or
arrangement referred to in (c) (d) or (e) above, shall be deemed to constitute Good
Reason so long as the opportunities or amounts referred to therein remain unchanged
after such amendment or such termination and replacement; and (ii) the Executive must
provide notice to the Employer of the existence of Good Reason not more than ninety
(90) days after the initial existence of the circumstance that constitutes Good Reason
as set forth above and provide a period of thirty (30) days for the Employer to remedy
the circumstance giving rise to the Good Reason and thus not have to pay the Change in
Control Severance Benefits as provided for under Section 3.2 herein; provided, however,
that the failure by the Executive to give such notice within such ninety (90) days
shall constitute a waiver of such Good Reason by the Executive in that instance. The
remedying of any circumstances by Employer or the failure of the Executive to give such
notice as aforesaid, shall not impair Executive’s right to claim Good Reason based upon
a recurrence of such circumstances or the occurrence of different circumstances within
the time period (twenty-four (24) months following a Change in Control) specified in
the first sentence of this section. All provisions and interpretations relating to
Good Reason are to be applied consistent with Section 409A of the Code and the
applicable Treasury Regulations at Section 1.409A-1(n)(2), and their successors
(“Section 409A”).
	 
	 	2.25	 	“Gross-Up Payment” has the meaning set forth in Section 6.1 herein.





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	 	2.26	 	“Notice of Termination” shall be provided for a Qualifying Termination and shall
mean a notice which shall indicate the specific termination provision in this Agreement
relied upon, and shall set forth in reasonable detail the facts and circumstances claimed
to provide a basis for a Qualifying Termination. The notice shall provide a specific
date (i) on which a Qualifying Termination has occurred and (ii) designated as the
Effective Date of Termination. Such Notice of Termination when provided by the Executive
for Good Reason as set forth in Section 2.24 herein (prior to the expiration of the
ninety (90) day notice and after the thirty (30) day cure period described in Section
2.24 herein) shall be consistent with the requirements of Section 409A.
	 
	 	2.27	 	“Person” shall have the meaning ascribed to such term in Section 3(a)(9) of the
Exchange Act and used in Sections 13(d) and 14(d) thereof, including a “group” as
provided in Section 13(d).
	 
	 	2.28	 	“Qualifying Termination” means:






	 	(a)	 	A termination of the Executive’s employment by the Employer on the
date of a Change in Control or during the twenty-four (24) months which follow a
Change in Control for reasons other than death, Disability, or Cause pursuant to
a Notice of Termination delivered to the Executive by the Employer; or
	 
	 	(b)	 	A termination by the Executive for Good Reason on the date of a
Change in Control or during the twenty-four (24) months which follow a Change in
Control pursuant to a Notice of Termination delivered to the Employer by the
Executive.






	 	2.29	 	“Release” means the signed release of claims and resignation of all positions as
an officer or director of the Employer and any company affiliated with the Employer,
which shall be substantially in the form attached hereto as Exhibit A.
	 
	 	2.30	 	“Section 409A” has the meaning set forth in Section 2.24 herein.
	 
	 	2.31	 	“SERP” means the retirement plan applicable to the Executive and entitled
“Supplemental Executive Retirement Plan for the Employees of CMS Energy/Consumers Energy
Company,” dated December 1, 2007, as amended, or under the successor or replacement of
such retirement plan if it is then no longer in effect. [For the Executives covered
under the defined contribution supplemental executive retirement plan, the following
definition shall be used: “means the retirement plan applicable to the Executive and
entitled “Defined Contribution Supplemental Executive Retirement Plan” dated December 1,
2007, as amended, or under the successor or replacement of such retirement plan if it is
then no longer in effect.]
	 
	 	2.32	 	“Total Payments” has the meaning set forth in Section 6.1 herein.





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Article 3. Change in Control Severance Benefits





	 	3.1	 	Right to Change in Control Severance Benefits.






	 	(a)	 	Change in Control Severance Benefits. The Executive shall be entitled
to receive from the Employer Change in Control Severance Benefits, as described in
Section 3.2 herein, if a Qualifying Termination of the Executive’s employment
satisfying the definitions contained in Section 2.28(a) or (b) herein has occurred
on the date of a Change in Control or within twenty-four (24) months immediately
following a Change in Control. Benefits received by the Executive under the
pension plan and SERP (or any replacement or successor plans thereto) shall not be
used as an offset to the level of Change in Control Severance Benefits owed to
Executive. The Effective Date of Termination will be the date the Executive
experiences a separation from service with the service recipient, as those terms
are defined under Section 409A.
	 
	 	(b)	 	No Change in Control Severance Benefits. The Executive shall not be
entitled to receive Change in Control Severance Benefits under this Agreement if
the Executive’s employment with the Employer ends for reasons other than a
Qualifying Termination.
	 
	 	(c)	 	Waiver and Release. The Executive shall sign and return to the
Employer a Release to be eligible for payment of Change in Control Severance
Benefits under Section 3.2 herein. Attached hereto as Exhibit A and incorporated
by reference in this Agreement is the form of release Executive shall sign and
return to qualify for Change in Control Severance Benefits under this Agreement.
No payment will be made until the seven (7) day right to revocation of the Release
has elapsed.
	 
	 	(d)	 	No Duplication of Severance Benefits. If the Executive receives Change
in Control Severance Benefits, any other severance benefits received by employees
not covered by this Agreement, if any, to which the Executive is entitled shall be
reduced on a dollar-for-dollar basis with respect to Change in Control Severance
Benefits paid pursuant to this Agreement so that there is no duplication of
severance benefits.






	 	3.2	 	Description of Change in Control Severance Benefits. In the event the Executive
becomes entitled to receive Change in Control Severance Benefits, as provided in Section
3.1(a) herein, the Employer (subject to Section 3.1(c)) shall provide the Executive with
the following:






	 	(a)	 	A lump-sum amount paid within thirty (30) calendar days following the
Effective Date of Termination equal to the sum of the Executive’s unpaid salary,
unreimbursed business expenses, and unreimbursed allowances owed to




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	 	 	 	the Executive through and including the Effective Date of Termination. In the
event the Executive is terminated following a performance year under the Officer
Incentive Compensation Plan but prior to payment of a bonus for such year, the
Executive will not forfeit such bonus but shall receive any payment when the same
is paid to active employees. To the extent, if any, the Executive has elected to
defer any bonus, any payments due under this provision corresponding to the
amount of the deferral shall be paid or deferred in accordance with the terms
elected by the Executive with respect to said plan under which the bonus is
deferred.
	 
	 	(b)	 	A lump-sum amount, paid within thirty (30) calendar days following
return of the signed Release (but not prior to the lapse of the seven (7) day
revocation period), which shall be provided not more than fifteen (15) days after
delivery to the Employer or delivery to the Executive, as applicable, of a Notice
of Termination, equal to [three (3)] [two (2)] times the sum of the following: (A)
the Executive’s Base Annual Salary and (B) the Executive’s annual target bonus
opportunity for the plan year in which the Qualifying Termination occurs.
Notwithstanding the above, to the extent that at the time of the Qualifying
Termination the Executive is age [62] [63] or older, the amount payable under this
provision shall be equal to the product of (x) the sum of A and B above, multiplied
by (y) a fraction the numerator of which shall be equal to the number of full and
partial months during the period commencing on the Effective Date of Termination
and ending on the Executive’s 65th birthday and the denominator of which shall be
[thirty-six (36)] [twenty-four (24)]. . Prior to such reduction, the Committee
shall determine that the Executive is a bona fide executive as that term is defined
in the Age Discrimination in Employment Act (“ADEA”) and that the other provisions
relating to mandatory retirement of an executive under ADEA are satisfied.
	 
	 	(c)	 	A lump-sum amount, paid within thirty (30) calendar days following
return of the signed Release (but not prior to the lapse of the seven (7) day
revocation period), which shall be provided not more than fifteen (15) days after
delivery to the Employer (but not earlier than the expiration of the thirty (30)
day cure period, if applicable) or delivery to the Executive, as the case may be,
of a Notice of Termination, equal to the Executive’s annual target bonus
opportunity for the plan year in which the Qualifying Termination occurs adjusted
on a pro rata basis for the number of days that have elapsed to the Effective Date
of Termination during such plan year (as compared to the total plan year, 365
days.) To the extent, if any, the Executive has elected to defer any bonus under
the applicable bonus plan, any payments due under this provision corresponding to
the amount of the deferral shall be paid in accordance with the payment terms
elected by the Executive with respect to the plan under which the bonus is
deferred.
	 
	 	(d)	 	The Executive and the Employer agree that a portion of the lump-sum
amount, payable under (b) above, shall be as consideration for the Executive
entering





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	 	 	 	into the noncompete and other restrictive covenants as described in Article 5
herein. The value of the consideration for the noncompete and other restrictive
covenants will be determined by an independent valuation consultant selected by
the Committee for the sole purpose of determining what portion of the total
consideration (which total shall not change as a result of such computation)
should, on the basis of value, be allocated to the noncompete and other
restrictive covenants as described in Article 5 herein.
	 
	 	(e)	 	The Employer shall provide the Executive continued health coverage
or, at Employer’s option, payments to defray the cost of continued health
coverage for [twenty-four (24)] [thirty-six (36] months following the Effective
Date of Termination, generally in accordance with rules and provisions under the
Consolidated Omnibus Budget Reconciliation Act of 1985, provided that (i) the
Employer shall pay 100% of the monthly cost of such continued health coverage
during such [twenty-four (24)] [thirty-six (36)] – month period and (ii) such
continued health coverage shall terminate when the Executive becomes eligible for
comparable health coverage under a new employer.
	 
	 	(f)	 	Immediate extension (as allowable by Section 6.10 of Article VI of
the plan entitled “CMS Energy Corporation Performance Incentive Stock Plan,” dated
December 3, 1999, as amended) by one (1) year after the Effective Date of
Termination of the period for the Executive to exercise any outstanding stock
options or stock appreciation rights granted by the Committee to Executive
pursuant to said Article VI, subject to earlier termination of such option or
stock appreciation right in accordance with the terms of such plan.
	 
	 	(g)	 	Immediate vesting and distribution to the Executive (as allowable by
the second sentence of Section 7.2(h) of Article VII of the plan entitled “CMS
Energy Corporation Performance Incentive Stock Plan (PISP))” dated December 3,
1999, as amended) within forty-five (45) days after delivery of the Notice of
Termination of all outstanding shares of restricted stock previously awarded to
Executive pursuant to said Article VII. Any portion of an award of restricted
stock subject to future performance goals based on absolute total shareholder
return, will vest as if the target performance had been achieved. The portion of
any award based on relative shareholder return will vest pro rata based upon the
number of days into the performance period up to the Change in Control date, using
the target number of shares as the basis for the pro ration. For any award of
restricted stock that is tenure based, the number of shares distributed to the
Executive shall assume that all requirements with respect to tenure are satisfied
by the Executive. Otherwise, the terms of said plan shall govern and be applied.
	 
	 	(h)	 	If the Executive is a participant in the SERP, the Executive’s
retirement benefits under the SERP will become fully vested as of the Effective
Date of Termination and shall not be subject to further vesting requirements or to
any forfeiture provisions. In addition the Executive shall be provided the





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	 	 	 	following: (i) an additional thirty-six (36) [24] months of Preference Service
(as defined in the SERP) for purposes of the SERP in accordance with Section III
of the SERP, subject, however, to the total of Preference Service plus Accredited
Service being limited to a maximum of thirty-five (35) years under the SERP, and
(ii) one third [half] of the amount paid to the Executive pursuant to clause (b)
of this Section 3.2 shall be considered a year of Earnings plus Incentive
Compensation (as the terms are defined in the SERP) for each of three [two]
(3)[(2)] plan years and shall be included when determining the highest five
years for purposes of computing Final Executive Pay under the SERP (as defined in
the SERP). [Note: For persons with 2 years of benefits under section 3.2(b), use
bracketed substitute items in prior sentence] [For an executive in the defined
contribution supplemental executive retirement plan the following replaces the
above: “If the Executive is a participant in the SERP, the Executive’s account
balance under the SERP will become fully vested as of the Effective Date of
Termination and shall not be subject to further vesting requirements or to any
forfeiture provisions. The Executive shall have added to his or her account
balance under the SERP, within fifteen (15) days of delivery of the Notice of
Termination, an amount equal to fifteen percent (15%) [10% in the case of those
Executives in salary grades E-3 or E-4] of the amount paid to the Executive under
clauses (b) and (c) of this Section 3.2. ”]
	 
	 	(i)	 	For purposes of (1) the Executive’s retirement, (2) the SERP and (3)
benefits not expressly discussed in clauses (a) through (h) of this Section 3.2,
but which are available to the general employee population or available only to
officers and implemented with contracts with third parties, the benefit plan
descriptions covering all employees and the retirement plan and the SERP plan
descriptions and contracts with third parties covering officers in place at the
time of the Effective Date of Termination control the Executive’s treatment under
those plans and contracts. All rights of the Executive to indemnification as an
officer or an employee will be determined under any applicable indemnification
policy in effect at the time the matter giving rise to the need for
indemnification is alleged to have occurred, or at the time immediately before the
Change in Control, at the election of the Executive. For any other benefits only
available to officers, if those benefits are not expressly discussed in clauses
(a) through (h) of this Section 3.2, those benefits are terminated for the
Executive as of the Effective Date of Termination.





Article 4. Notice of Termination; Resignation As Officer and Director





	 	4.1	 	Any Qualifying Termination of the Executive’s employment shall be communicated by a
Notice of Termination which shall indicate the specific termination provision in this
Agreement relied upon, and shall set forth in reasonable detail the facts and
circumstances claimed to provide a basis for a Qualifying Termination. The Notice of
Termination shall also provide a specific date (i) on which a Qualifying




12









 











Tier IV Change in Control as of August, 2008





	 	 	 	Termination has occurred and (ii) that is designated as the Effective Date of
Termination.
	 
	 	4.2	 	On or before the Effective Date of Termination, the Executive shall submit to the
Employer his or her written resignation as (i) an officer of the Employer and of all
Affiliates and (ii) a member of the board of directors of the Employer and of all
Affiliates.





Article 5. Restrictive Covenants and Clawback





	 	5.1	 	The following shall apply after any termination (including, without limitation, due
to retirement, disability or resignation for any reason) of the Executive’s employment,
whether prior to or following a Change in Control:






	 	(a)	 	Noncompetition. During the term of employment and for a period of
twenty-four (24) months after the date of the termination of the Executive’s
employment, the Executive shall not: (i) directly or indirectly, separately or
acting or conspiring with any Person or Entity whether or not employed by CMS
Energy Corporation or any of its Affiliates, engage in or prepare to engage in or
have a financial or other interest in any business which is a Direct Competitor
(as defined below); or (ii) serve as an employee, agent, partner, member,
shareholder, director, or consultant, or in any other capacity whatsoever
participate, engage, or have a financial or other interest in, any business which
is a Direct Competitor; provided, however, that notwithstanding anything to the
contrary contained in this Agreement, the Executive may own up to two percent (2%)
of the outstanding shares of the capital stock of an Entity whose shares are
registered under Section 12 of the Exchange Act.
	 
	 	 	 	A “Direct Competitor” means an Entity engaged in the business of (1)(a) selling
electric power or natural gas at retail or wholesale within the State of Michigan
or (b) selling electric power at wholesale within the market area in which an
electric generating plant owned by an Affiliate of CMS Enterprises Company is
located or (c) storing natural gas within the State of Michigan or (d) generating,
transmitting or distributing electricity or natural gas within the State of
Michigan, or (2) developing an electric generating plant within the State of
Michigan or a market area in which an electric generating plant owned by an
Affiliate of CMS Enterprises Company is located. A “Direct Competitor” also means
any Entity that the Committee designates as a Direct Competitor, prior to the
termination date specified in a Notice of Termination, that it believes, in good
faith, is a competitor to CMS Energy Corporation or its Affiliates.
	 
	 	(b)	 	Confidentiality. The Employer has advised the Executive and the
Executive acknowledges that it is the policy of CMS Energy Corporation and its
Affiliates to maintain as secret and confidential all Protected Information (as
defined below), and that Protected Information has been and will be developed at
substantial cost and effort to CMS Energy Corporation and its Affiliates. The
Executive shall not at any time, directly or indirectly, divulge, furnish, or make





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Tier IV Change in Control as of August, 2008





	 	 	 	accessible to any person or Entity (other than as may be required in the regular
course of the Executive’s employment), nor use in any manner, either during the
term of employment or after termination, for any reason, any Protected
Information, or cause any such information of CMS Energy Corporation and its
Affiliates to enter the public domain.
	 
	 	 	 	“Protected Information” means trade secrets, confidential and proprietary business
information of CMS Energy Corporation and its Affiliates and any other information
of CMS Energy Corporation and its Affiliates, including, but not limited to,
customer lists (including potential customers), sources of supply, processes,
plans, materials, pricing information, internal memoranda, marketing plans,
internal policies, and products and services which may be developed from time to
time by CMS Energy Corporation and its Affiliates and their agents or employees,
including the Executive; provided, however, that information that is in the public
domain (other than as a result of a breach of this Agreement), approved for
release by CMS Energy Corporation or its Affiliates or lawfully obtained from
third parties who are not bound by a confidentiality agreement with CMS Energy
Corporation or its Affiliates, is not Protected Information. Notwithstanding the
foregoing, nothing in this subsection is to be construed as prohibiting the
Executive from providing information to a state or federal agency, legislative
body or one of its committees or a court with jurisdiction when the Executive is
legally required to do so, provided that promptly after being notified of such
requirement the Executive notifies the Employer, or from disclosing Protected
Information to the Executive’s spouse, attorney and/or his or her personal tax and
financial advisors as reasonably necessary or appropriate to advance the
Executive’s tax, financial and other personal planning (each an “Exempt Person”),
provided, however, that any disclosure or use (beyond the specific purpose for
which it was released to such Exempt Person) of Protected Information by an Exempt
Person shall be deemed to be a breach of this Section 5.1(b) by the Executive.
	 
	 	(c)	 	Nonsolicitation. During the term of employment and for a period of
twelve (12) months after the date of the termination of the Executive’s employment,
the Executive shall not: (i) employ or retain or solicit for employment or arrange
to have any other person or Entity employ or retain or solicit for employment or
otherwise participate in the employment or retention of any person who (x) is an
employee or consultant of CMS Energy Corporation or its Affiliates or (y) was an
employee or consultant of CMS Energy Corporation or its Affiliates at any time
during the twelve (12) month period immediately preceding the date of the
occurrence of the activity described in clause (i); or (ii) solicit suppliers or
customers of CMS Energy Corporation or its Affiliates or induce any such person to
terminate their relationship with them.
	 
	 	(d)	 	Cooperation. The Executive shall fully and unconditionally cooperate
with CMS Energy Corporation and its Affiliates and their attorneys in connection
with any and all lawsuits, claims, investigations, or similar proceedings that




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Tier IV Change in Control as of August, 2008





	 	 	 	have been or could be asserted at any time arising out of or related in any way to
the Executive’s employment or activities on behalf of CMS Energy Corporation and
its Affiliates.
	 
	 	(e)	 	Nondisparagement. The provisions of this Section 5.1(e) apply at all
times following the termination of the Executive’s employment for any reason: The
Executive shall not disparage CMS Energy Corporation or its Affiliates or their
officers and/or directors, or otherwise make comments harmful to their reputations.
The Executive further shall not testify or act in any capacity as a paid or unpaid
expert witness, advisor or consultant or otherwise on behalf of any person or
Entity that has or may have any claim, demand, action, suit, cause of action, or
judgment against CMS Energy Corporation or its Affiliates, or in any regulatory
agency proceeding in a manner adverse to their interests. The executive officers
and directors of CMS Energy Corporation and its Affiliates shall not disparage the
Executive or otherwise make comments harmful to the Executive’s reputation.
Notwithstanding the foregoing, nothing in this Section 5.1(e) prohibits the
Executive or representatives of CMS Energy Corporation or its Affiliates from
testifying truthfully under oath in any judicial, administrative or legislative
proceedings or in any arbitration, mediation or other similar proceedings where his
or her testimony has been legally compelled or pursuant to Section 7.1 herein.
	 
	 	(f)	 	Return of the Employer Property. The Executive agrees that upon
termination of employment he or she shall return all property of the Employer or
any Affiliate now in his or her possession.
	 
	 	(g)	 	Clawback Relating to Illegal Acts or Restatement of Corporation’s
Financial Statements. If, due to a restatement of CMS Energy Corporation’s or an
Affiliate’s publicly disclosed financial statements or otherwise, the Executive is
subject to an obligation to make a repayment to CMS Energy Corporation or an
Affiliate pursuant to a clawback provision contained in a SERP Plan, the PISP, a
bonus plan or other benefit plan (a “benefit plan clawback provision”) of CMS
Energy Corporation or its Affiliate, it shall be a precondition to the obligation
of Employer to make any payment under this Agreement, that the Executive fully
repay to CMS Energy Corporation or its Affiliate any amounts owing under such
benefit plan clawback provision. The payments under this Agreement are further
subject to any provision of law which may require the Executive to forfeit or repay
any benefits provided hereunder that are based upon a bonus or incentive
compensation, or equity compensation, in the event of a restatement of CMS Energy
Corporation’s or an Affiliate’s publicly disclosed accounting statements or other
illegal act, whether required by Section 304 of the Sarbanes-Oxley Act of 2002,
federal securities law (including any rule or regulation promulgated by the
Securities and Exchange Commission), any state law, or any rule or regulation
promulgated by the applicable listing exchange or system on which CMS Energy
Corporation or an Affiliate lists its traded shares. To the degree any benefits
hereunder are not otherwise forfeitable pursuant to the preceding sentences of this
Section 5.1(g),





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Tier IV Change in Control as of August, 2008





	 	 	 	the Board or Committee may require the Executive to repay to Employer any amounts
paid under this Agreement that are computed on the basis of a target bonus or
actual bonus under a bonus plan applicable to the Executive (a “bonus-based
payment”), if the Board or Committee determines, on the basis of the clawback
provisions in the bonus plan under which such bonus-based payments are computed,
that the Executive would have been required to make a repayment of such
bonus-based payments had they been paid to the Executive directly under such bonus
plan rather than under this Agreement. The rights set forth in this Agreement
concerning the right of CMS Energy Corporation, an Affiliate and/or Employer to a
clawback are in addition to any other rights to recovery or damages available at
law or equity and are not a limitation of such rights.
	 
	 	(h)	 	Enforcement. The parties to this Agreement acknowledge that the
services of the Executive are unique and extraordinary and that a breach of any
provision of this Section 5.1 will cause irreparable harm to the Employer.
Accordingly, the Executive agrees that notwithstanding the provisions of Section
7.1 herein, the Employer has the right to seek to enforce the noncompete and other
restrictive covenants contained in this Section 5.1 in a court of law or equity and
the Executive hereby consents to the imposition of an injunction or a temporary
restraining order or such other equitable relief as necessary to protect the rights
of the Employer under this Agreement.





Article 6. Excise Tax Equalization Payment





	 	6.1	 	Excise Tax Equalization Payment. In the event that the Executive becomes entitled
to Change in Control Severance Benefits or any other payment or benefit under this
Agreement, or under any other agreement, plan or arrangement for which Executive is
eligible with (1) the Employer, (2) any Person or Entity whose actions result in a Change
in Control, or (3) CMS Energy Corporation or any of its Affiliates (all of such payments
and benefits collectively referred to as the “Total Payments”), and if all or any part of
the Total Payments will be subject to the tax (the “Excise Tax”) imposed by Sections 280G
and 4999 of the Code (or any similar tax that may hereafter be imposed), the Employer
shall pay to the Executive or on his or her behalf in cash an additional amount (the
“Gross-Up Payment”) such that the net amount retained by the Executive after deduction of
any Excise Tax upon the Total Payments and any federal, state, and local income and
employment tax, penalties, interest, and Excise Tax upon the Gross-Up Payment provided
for by this Section 6.1 (including FICA and FUTA), shall be equal to the Total Payments.
Such payment shall be made by the Employer to the Executive by the end of the taxable
year of the Executive next following the taxable year in which the Executive remits the
related taxes.
	 
	 	 	 	For purposes of determining the amount of the Gross-Up Payment, the Committee shall
select in its sole discretion an accounting or other consulting firm (other than the
Employer’s and CMS Energy Corporation’s auditors) to perform such calculation. In
addition, the Executive shall be deemed to pay federal income taxes at the highest





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Tier IV Change in Control as of August, 2008





	 	 	 	marginal rate of federal income taxation in the calendar year in which the Gross-Up
Payment is to be made, and state and local income taxes at the highest marginal rate of
taxation in the state and locality of the Executive’s residence on the Effective Date of
Termination, net of the maximum reduction in federal income taxes which could be obtained
from deduction of such state and local taxes.
	 
	 	6.2	 	Subsequent Recalculation. In the event the Internal Revenue Service adjusts the
computation under Section 6.1 herein so that the Executive did not receive the greatest
net benefit, the Employer shall reimburse the Executive for the full amount necessary to
make the Executive whole, plus interest on the reimbursed amount at 120% of the rate
provided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax is
finally determined to be less than the amount taken into account hereunder in calculating
the Gross-Up Payment, the Executive shall repay the Employer within thirty (30) business
days following the time that the amount of such reduction in the Excise Tax is finally
determined, the portion of the Gross-Up Payment attributable to such reduction (plus that
portion of the Gross-Up Payment attributable to the Excise Tax and federal, state and
local income and employment taxes imposed on the Gross-Up Payment being repaid by the
Executive) to the extent that such repayment results in a reduction in the Excise Tax and
a dollar-for-dollar reduction in the Executive’s taxable income and wages for purposes of
federal, state and local income and employment taxes, plus interest on the amount of such
repayment at 120% of the rate provided in Section 1274(b)(2)(B) of the Code.
	 
	 	6.3	 	Reduction to Avoid Excise Tax. The payments to the Executive under Section 3.2
herein shall be reduced in the aggregate by up to 10%, if such a reduction will cause
there to be no Excise Tax incurred. Any such reduction shall be the minimum amount
necessary to eliminate the Excise Tax, and if the amount to eliminate the Excise Tax is in
excess of 10% of said payments, then no reduction will be made. In making the reduction,
the Executive may select in his or her sole discretion which of the applicable payments
will be reduced.





Article 7. Dispute Resolution and Notice





	 	7.1	 	Dispute Resolution. Any dispute or controversy between the Executive and the Employer
arising under or in connection with this Agreement (other than Article 5 of this Agreement)
shall first be submitted in writing to the Committee for attempted resolution. If such
submission does not result in mutually agreeable resolution within sixty (60) days thereof,
such dispute or controversy shall be settled by final and binding arbitration. Such
arbitration shall be conducted before a single arbitrator selected by the parties to be
conducted in Jackson, Michigan. The arbitration will be conducted in accordance with the
rules of the American Arbitration Association then in effect and be finished within ninety
(90) days after the selection of the arbitrator, and if the Executive and the Employer are
unable to agree within thirty (30) days on such a single arbitrator, such Association shall
select such arbitrator. The arbitrator shall not have authority to fashion a remedy that
includes consequential, exemplary or




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Tier IV Change in Control as of August, 2008





	 	 	 	punitive damages of any type whatsoever, and the arbitrator is hereby prohibited from
awarding injunctive relief of any kind, whether mandatory or prohibitory. Judgment may
be entered on the award of the arbitrator in any court having competent jurisdiction.
The Executive and the Employer shall share equally the cost of the arbitrator and of
conducting the arbitration proceeding, but each party shall bear the cost of its own
legal counsel and experts and other out-of-pocket expenditures. Notwithstanding the
foregoing, the Executive and the Employer acknowledge that the enforcement of the
Employer’s rights under Article 5 herein are unique and agree that the Employer is not
limited to the remedy of arbitration but may elect the remedy of its choice including
filing suit in a court of law or equity and the Executive agrees that the Employer has
the right to obtain an injunction and/or a temporary restraining order to protect its
rights.
	 
	 	7.2	 	Notice. Any notices, requests, demands, or other communications provided for by
this Agreement shall be in writing and sent by registered or certified mail to the
Executive at the address set forth beneath his or her signature on the last page of this
Agreement or, to the Employer, at One Energy Plaza, Jackson, Michigan 49201, Attention:
Corporate Secretary. Notices, requests, demands or other communications may also be
delivered by messenger, courier service or other electronic means and are sufficient if
actually received by the party for whom it is intended.





Article 8. Successors and Assignment





	 	8.1	 	Successors. Any successor (whether direct or indirect, by purchase, merger,
reorganization, consolidation, acquisition of property or stock, liquidation, or
otherwise) to the business of CMS Energy Corporation or purchaser of all or substantially
all of the assets of CMS Energy Corporation shall be required to expressly assume and
agree to perform under this Agreement in the same manner and to the same extent that the
Employer would be required to perform if no such succession had taken place. This
Agreement shall be binding upon any successor in accordance with the operation of law.
	 
	 	8.2	 	Assignment by the Executive. This Agreement shall inure to the benefit of and be
enforceable by the Executive’s personal or legal representatives, executors,
administrators, successors, heirs, distributees, devisees, and legatees. If the
Executive dies while any amount would still be payable to him or her hereunder had he or
she continued to live, all such amounts, unless otherwise provided herein, shall be paid
in accordance with the terms of this Agreement to the Executive’s Beneficiary. If the
Executive has not named a Beneficiary, then such amounts shall be paid to the Executive’s
devisee, legatee, or other designee, or if there is no such designee, to the Executive’s
estate.




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Article 9. Miscellaneous





	 	9.1	 	Employment Status. The employment of the Executive by the Employer is “at will”
and, subject to the Executive’s rights pursuant to this Agreement or any separate written
separation agreement entered into by the Executive and CMS Energy Corporation, may be
terminated by either the Executive or the Employer at any time, subject to applicable
law. Further, the Executive has no right to be an officer of CMS Energy Corporation or
any of its Affiliates and serves as an officer entirely at the discretion of the Board.
	 
	 	9.2	 	Entire Agreement. This Agreement supersedes any prior agreements or understandings,
oral or written, between the parties hereto, with respect to the subject matter hereof,
and this Agreement (including the “whereas” clauses and Exhibit A) constitutes the entire
agreement of the parties with respect thereto. Without limiting the generality of the
foregoing sentence, this Agreement completely supersedes, cancels, voids and renders of
no further force and effect any and all other change in control agreements, and other
similar agreements, communications, representations, promises, covenants and
arrangements, whether oral or written, between the Employer and the Executive and between
the Executive and CMS Energy Corporation or any of its Affiliates that may have taken
place or been executed prior to the Effective Date and which may address the subject
matters contained herein. Notwithstanding the above, this Agreement is supplemental to
and does not replace any written separation agreement entered into between the parties
that is not contingent on a Change in Control, provided however that in no event will the
Executive be entitled to payments under this Agreement that would be duplicative of any
payment and/or benefits due under such other written separation agreement.
	 
	 	9.3	 	Severability. In the event that any provision or portion of this Agreement shall be
determined to be invalid or unenforceable for any reason, the remaining provisions of
this Agreement shall be unaffected thereby and shall remain in full force and effect, and
the parties shall negotiate in good faith to accomplish the purposes and amend this
Agreement so as, to the extent possible under the law, to carry out the original intent
of the provision or portion determined to be invalid or unenforceable.
	 
	 	9.4	 	Tax. The Employer may withhold from any benefits payable under this Agreement any
authorized deductions and all federal, state, city, or other taxes as may be required
pursuant to any law or governmental regulation or ruling. Notwithstanding anything
contained in this Agreement to the contrary, if the Executive is a “specified employee”
(determined in accordance with Section 409A and Treasury Regulation Section
1.409A-3(i)(2)) as of the Effective Date of Termination, and if any payment, benefit or
entitlement provided for in this Agreement or otherwise both (i) constitutes a “deferral
of compensation” within the meaning of Section 409A and (ii) cannot be paid or provided
in a manner otherwise provided herein or otherwise without subjecting the Executive to
additional tax, interest and/or penalties under Section 409A, then any such payment,
benefit or entitlement that is payable during the first 6 months





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	 	 	 	following the Effective Date of Termination shall be paid or provided to the Executive in
a lump sum cash payment to be made on the earlier of (x) the Executive’s death or (y) the
first day that is more than six (6) months immediately following the Effective Date of
Termination (or, if different, the date that qualifies as a “separation from service” (as
such term is used under Section 409A)). Each payment to be made under this Agreement
shall be treated as a separate payment for purposes of Section 409A. Notwithstanding
anything contained in this Agreement to the contrary, the Employer shall have the
unilateral right to amend this Agreement at any time for the sole purpose of complying
with Section 409A.
	 
	 	9.5	 	Beneficiaries. The Executive may designate one (1) or more persons or Entities as
the primary and/or contingent beneficiaries of any amounts to be received under this
Agreement. Such designation must be in the form of a signed writing on a form provided
by the Employer. The Executive may make or change such designation at any time.
	 
	 	9.6	 	Payment Obligation Absolute. Except as otherwise provided in this Agreement and as
provided in the last sentence of this paragraph, the Employer’s and CMS Energy
Corporation’s obligations to make the payments and provide the benefits to the Executive
specified herein shall be absolute and unconditional, and shall not be affected by any
circumstances, including, without limitation, any offset, counterclaim, defense, or other
right which the Employer, CMS Energy Corporation or any of its Affiliates may have
against the Executive or anyone else. Except as otherwise provided in this Agreement, all
amounts payable by the Employer hereunder shall be paid without notice or demand. Each
and every payment made hereunder by the Employer shall be final, but subject to the
provisions of the next sentence. If the Executive should seek to litigate this Agreement
or the subject matters addressed herein in a state or federal court, subject to the
requirements of Section 409A, to the extent applicable, (i) the Executive at least ten
(10) days prior to filing in court shall tender back to the Employer all cash
consideration paid to the Executive under this Agreement prior thereto and (ii) any
payments then or thereafter due to the Executive under this Agreement shall be withheld
until said litigation is finally resolved.
	 
	 	 	 	The Executive shall not be obligated to seek other employment in mitigation of the
amounts payable or arrangements made under any provision of this Agreement, and the
obtaining of any such other employment, provided such other employment is not a violation
of the provisions of Article 5 herein, shall in no event effect any reduction of the
Employer’s obligations to make the payments and arrangements required to be made under
this Agreement.
	 
	 	9.7	 	Contractual Rights to Benefits. Subject to approval and ratification by the
Committee, this Agreement establishes and vests in the Executive a contractual right to
the benefits to which he or she is entitled hereunder. However, nothing herein contained
shall require or be deemed to require, or prohibit or be deemed to prohibit, the Employer
to segregate, earmark, or otherwise set aside any funds or other assets, in trust or
otherwise, to provide for any payments to be made or required hereunder.




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	 	9.8	 	Modification. Except as otherwise provided in this Agreement, this Agreement shall
not be varied, altered, modified, canceled, changed, or in any way amended except by
mutual agreement of the parties in a written instrument executed by the parties hereto or
their legal representatives.
	 
	 	9.9	 	Counterparts and Headings. This Agreement may be executed in one (1) or more
counterparts, each of which shall be deemed to be an original, but all of which together
will constitute one and the same Agreement. Signatures transmitted via facsimile shall
be regarded by the parties as original signatures. The headings of the various sections
and subsections of this Agreement shall not limit or affect the terms and provisions of
this Agreement.
	 
	 	9.10	 	Representation. Each of the Executive and the Employer represents and warrants
that this Agreement is a legal, valid and binding agreement, enforceable in accordance
with its terms, and does not conflict with any other agreement to which he, she or it is
a party. The Executive acknowledges that he or she has had an opportunity to consult
with his or her legal and financial advisors before executing and delivering this
Agreement, and has read and understands this Agreement.
	 
	 	9.11	 	Applicable Law. This Agreement shall be governed and construed in accordance with
the laws of the State of Michigan, without regard to its conflicts of laws principles.





REMAINDER OF PAGE INTENTIONALLY LEFT BLANK




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Tier IV Change in Control as of August, 2008


     IN
WITNESS WHEREOF, the parties have executed this Agreement as of this
                     day of
                    ,
20     .



	 	 	 	 	 	 	 	 	 	 	 
	[CMS ENERGY CORPORATION or EMPLOYER]	 	                    EXECUTIVE:	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	Signature:	 	 	 	 
	 
	 	 
	 	 	 	 	 	 
	 	 
	Its:
	 	 	 	 	 	Printed Name:	 	 	 	 
	 
	 	 
	 	 	 	 	 	 
	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	Address:	 	 	 	 
	 
	 	 	 	 	 	 	 	
 
	 	 
	 
	 
	 	 	 	 	 	 	 	 
	 	 






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Tier IV Change in Control as of August, 2008




EXHIBIT A




GENERAL RELEASE AGREEMENT



This
General Release Agreement (“Agreement”), made as of
the           
day of           , 20     , pursuant
to Michigan law, among           
(the “Executive”), an individual, and
          , a Michigan corporation (the “Employer”) is a general release of claims against
the Employer, CMS Energy Corporation and all of their subsidiaries and affiliates (collectively the
“CMS Companies”).



WHEREAS,
the Executive’s employment with the Employer [will end] [has ended] on
          , 20     
and [he] [she] is eligible for the receipt of severance
benefits under a Change in Control
Agreement. dated as of           ,
20     
between the Executive and the Employer (the “CIC
Agreement”) provided that the Executive first executes and delivers to the Employer a prescribed
form of general release attached as Exhibit A to the CIC Agreement;



WHEREAS, terms used in this Agreement that are also used and defined in the CIC Agreement shall
have the same definition in this Agreement if not separately and differently defined herein, such
terms being recognizable by initial caps; and



WHEREAS, this General Release Agreement satisfies the condition for receipt of Change in Control
Severance Benefits under Article 3 of the CIC Agreement.



NOW THEREFORE, in consideration of the covenants undertaken and the releases contained in this
Agreement, the Executive and the Employer agree as follows:




1. MONETARY AND OTHER CONSIDERATION



In consideration for the releases and the other covenants in this Agreement, the Executive agrees
and reaffirms that the only monetary and other consideration to which [he] [she] is entitled due to
the termination of employment is that provided to the Executive pursuant to the CIC Severance
Agreement, as set forth on Attachment A attached to this Agreement.




2. RETURN OF COMPANY PROPERTY



By signing this Agreement, the Executive represents and warrants that [he] [she] has returned to
the Employer all of its property and all the property of any of the CMS Companies which the
Executive had in [his] [her] possession.




3. GENERAL RELEASE AND DISCHARGE BY EXECUTIVE



In consideration of the payments and commitments made by the Employer to the Executive (described
in Section 1 above), the Executive on [his] [her] own behalf, and [his] [her] descendants,
ancestors, dependents, heirs, executors, administrators, assigns, and successors,



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Tier IV Change in Control as of August, 2008



and each of them, hereby covenants not to sue and fully releases and discharges the Employer, CMS
Energy Corporation, and all of their subsidiaries and affiliates, past and present, and each of
them as well as its and their trustees, directors, officers, agents, attorneys, insurers,
employees, stockholders, representatives, assigns, and successors, past and present, and each of
them, hereinafter together and collectively referred to as “Releasees,” with respect to and from
any and all claims, wages, demands, rights, liens, agreements, contracts, covenants, actions,
suits, causes of action, obligations, debts, costs, expenses, attorneys’ fees, damages, judgments,
orders and liabilities of whatever kind or nature in law, equity or otherwise, whether now known or
unknown, suspected or unsuspected, and whether or not concealed or hidden, which the Executive now
owns or holds or has at any time on or prior to the Effective Date of Termination owned or held as
against said Releasees, arising out of or in any way connected with the Executive’s employment
relationship with the Employer or the Releasees, or the Executive’s termination of employment or
any other transactions, occurrences, acts or omissions or any loss, damage or injury whatsoever,
known or unknown, suspected or unsuspected, resulting from any act or omission by or on the part of
said Releasees, or any of them, committed or omitted prior to the date of this Agreement, including
but not limited to, claims based on any express or implied contract of employment which may have
been alleged to exist between the Employer, the Releasees and the Executive, or under the Age
Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §621, et seq, as amended by the Older
Workers Benefit Protection Act of 1990, Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§2000e, et seq, as amended, the Civil Rights Act of 1991, P. L. 102-1 66, the Elliott-Larsen Civil
Rights Act, MCLA §37.2101, et seq, the Rehabilitation Act of 1973, 29 U.S.C. §701, et seq, as
amended, the Americans with Disabilities Act of 1990, 42 U.S.C. §12206, et seq, as amended, or the
Persons with Disabilities Civil Rights Act, MCLA §37.1101, et seq, as amended, or any other
federal, state or local law, rule, regulation or ordinance, and claims for severance pay, sick
leave, holiday pay, and any other fringe benefit provided to the Executive by the Employer or
Releasees except for those rights preserved by Section 3.2(i) of the CIC Agreement. Nothing in this
Agreement is intended to, nor do the Executive and the Employer, waive the right to enforce the CIC
Agreement.




4. REVOCATION OF RELEASE BY EXECUTIVE



The Executive specifically acknowledges for purposes of this Agreement that: (1) the Executive has
been advised by the Employer to consult with an attorney prior to signing this Agreement; (2) the
Executive has been given [21] [45] days to consider the release; and (3) the Executive may revoke
this Agreement within 7 days of signing this Agreement. In the event of such a revocation, the
Executive will repay to Employer all funds already received under the CIC Agreement and waive [his]
[her] rights to receive any additional funds under the CIC Agreement. Such a revocation, to be
effective, must be in writing and either (i) postmarked within 7 days of execution of this
Agreement and addressed to the attention of           , CMS Energy Corporation, at One Energy
Plaza, Jackson, Michigan 49201, or (ii) hand delivered to
          
within 7 days of execution
of this Agreement. The Executive understands that if revocation is made by mail, mailing by
certified mail, return receipt requested, is recommended to show proof of mailing. IF THE EXECUTIVE
SIGNS THIS AGREEMENT PRIOR TO THE END OF THE [21] [45] DAY PERIOD, THE EXECUTIVE CERTIFIES



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Tier IV Change in Control as of August, 2008



THAT THE EXECUTIVE KNOWINGLY AND VOLUNTARILY DECIDED TO SIGN THE AGREEMENT AFTER CONSIDERING IT
LESS THAN [21] [45] DAYS AND [HIS] [HER] DECISION TO DO SO WAS NOT INDUCED BY THE EMPLOYER THROUGH
FRAUD, MISREPRESENTATION OR A THREAT TO WITHDRAW OR ALTER THE OFFER THE SEVERANCE BENEFITS PAYABLE
UNDER THE CIC AGREEMENT PRIOR TO THE EXPIRATION OF THE [21] [45] DAY TIME PERIOD.



THIS AGREEMENT AND THE RELEASE CONTAINED IN THIS AGREEMENT SHALL BECOME EFFECTIVE AND ENFORCEABLE
ONLY AFTER THE REVOCATION PERIOD HAS PASSED.




5. GOVERNING LAW AND SEVERABILITY OF INVALID PROVISIONS



This Agreement will be governed by and construed in accordance with the laws of the State of
Michigan, without regard to its conflicts of law principles. In the event that any provision or
portion of this Agreement shall be determined to be invalid or unenforceable for any reason, the
remaining provisions of this Agreement shall be unaffected thereby and shall remain in full force
and effect, and the parties shall negotiate in good faith to accomplish the purposes and amend this
Agreement so as, to the extent possible under the law, to carry out the original intent of the
provision or portion determined to be invalid or unenforceable.




6. FULL UNDERSTANDING AND VOLUNTARY ACCEPTANCE



In entering this Agreement, the Employer and the Executive represent that they have had the
opportunity to consult with attorneys of their own choice, that the Employer and the Executive have
read the terms of this Agreement and that those terms are fully understood and voluntarily accepted
by them.




7. DISPUTE RESOLUTION



The provisions of Article 7, Dispute Resolution and Notice, of the CIC Agreement, shall apply to
and govern any dispute arising under this Agreement.




8. MODIFICATION



Except as otherwise provided in this Agreement, this Agreement shall not be varied, altered,
modified, canceled, changed, or in any way amended except by mutual agreement of the parties in a
written instrument executed by the parties hereto or their legal representatives.




9. COUNTERPARTS AND HEADINGS



This Agreement may be executed in one (1) or more counterparts, each of which shall be deemed to be
an original, but all of which together will constitute one and the same Agreement. Signatures
transmitted via facsimile shall be regarded by the parties as original signatures. The headings of
the various sections and subsections of this Agreement shall not limit or affect the terms and
provisions of this Agreement.




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Tier IV Change in Control as of August, 2008



	 	 	 	 	 	 	 
	Signed this
      day of                     ,
20     .
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	[EXECUTIVE’S NAME]	 	 
	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 
	 	 	 	 	 
	 	 	[EMPLOYER’S NAME]	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 

	 	Its:	 	 	 	 
	 

	 	 	 	 

	 	 





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Tier IV Change in Control as of August, 2008




ATTACHMENT A





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