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 andbetween                     ,a Michigan corporation, (hereinafter referred to as the“Employer”) and                     (hereinafterreferred to as the “Executive”).     WHEREAS, the Board of Directors of CMS Energy Corporation, a Michigan corporation (hereinafterreferred to as “CMS Energy Corporation”) has approved entering into change in control agreementswith certain key executives as being necessary and advisable for the success of CMS EnergyCorporation;     WHEREAS,the Executive is currently employed at                    ,by the Employer in a key management positionas                     ;     WHEREAS, the Board of Directors of CMS Energy Corporation wants to provide the Executive witha measure of financial security in the event of a change in control of CMS Energy Corporation asdefined in this Agreement; and     WHEREAS, both the Executive and the Employer seek to have any proposal involving a change incontrol of CMS Energy Corporation as defined in this Agreement be considered by the Executiveobjectively and with reference only to the business interests of CMS Energy Corporation and itsshareholders.     NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreementsof the Executive and the Employer and of other good and valuable consideration, the receipt andsufficiency of which are hereby acknowledged, the Executive and the Employer, intending to belegally bound, agree as follows:**Article 1. Establishment, Term, and Purpose**     This Agreement will commence on the Effective Date and shall continue in effect until December31, 2010. However, at December 31, 2010, and, if extended, at the end of each additional yearthereafter, 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 tothe end of such term, or extended term, to the Executive, stating that the Agreement will not beextended. 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 theearlier of (i) the date that is two (2) years from the date of the Change in Control if the currentterm of this Agreement has less than two (2) full years
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Tier IV Change in Control as of August, 2008remaining until its expiration or (ii) the date the Executive attains age 65. If the term ofthis Agreement is not extended, the Employer is not obligated to pay any severance benefits underSection 3.2 herein for a Change in Control that happens after the expiration of the term of thisAgreement. In addition, notwithstanding the above, any obligation of the Employer arising duringthe 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 applicabletime limitations under Section 2.26 herein. Notwithstanding the forgoing, the obligations of theExecutive under Article 5 herein shall continue in effect and survive the expiration of the term ofthis 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 EffectiveDate of Termination, or (ii) at the date of the Change in Control. It does not includeany incentive compensation in any form, bonuses of any type or any other form of monetaryor 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 toSection 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 andreasonable judgment, and means the occurrence of any one or more of the following: (a) The continued failure by the Executive to substantially perform his orher duties of employment (other than any such failure resulting from theExecutive’s Disability), after a demand for substantial performance is delivered tothe Executive that identifies the manner in which the Committee believes that theExecutive has not substantially performed his or her duties,
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Tier IV Change in Control as of August, 2008   and the Executive has failed to remedy the situation within a reasonable periodof 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 amisdemeanor involving fraud, embezzlement, theft, misappropriation, or failure tobe truthful; or  (c) The Executive’s (i) gross negligence, (ii) failure or refusal, onrequest or demand by the Employer or any governmental authority, to providetestimony to or to cooperate with any governmental regulatory authority, or anyother similar non-cooperation by the Executive, (iii) willful engaging inmisconduct materially or demonstrably injurious to the business or reputation (byadverse publicity or otherwise) of CMS Energy Corporation or its Affiliates,monetarily or otherwise, or (iv) violation of a material provision of theEmployer’s code of conduct and code of ethics, including but not limited toviolations of the Employer’s policies relating to substance abuse anddiscrimination; 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 partshall be considered “willful” if done, or omitted to be done, by the Executive (i) ingood faith and (ii) with reasonable belief that his or her action or omission was in thebest interest of CMS Energy Corporation or its Affiliates.  **2.10** **“Change in Control”**means a change in control of CMS Energy Corporation, and shallbe 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 securitiesbeneficially owned by such Person any securities acquired directly from CMS EnergyCorporation or its Affiliates) representing thirty percent (30%) or more of thecombined voting power for the election of directors of CMS Energy Corporation’sthen outstanding equity securities with the power under ordinary circumstances tovote for the election of directors, excluding any Person who becomes such aBeneficial Owner in connection with a transaction described in clause (i) ofSection 2.10 (c) below; or  (b) The following individuals cease for any reason to constitute a majorityof directors then serving: individuals who, on the Effective Date, constitute theBoard and any new director (other than a director whose initial assumption ofoffice is in connection with an actual or threatened election contest, includingbut not limited to a consent solicitation, relating to the election of directors ofCMS Energy Corporation) whose appointment or election by the Board or nominationfor election by CMS Energy Corporation’s stockholders was
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Tier IV Change in Control as of August, 2008   approved or recommended by a vote of at least two-thirds (2/3) of the directorsthen still in office who either were directors on the Effective Date or whoseappointment, election or nomination for election was previously so approved orrecommended; or  (c) The consummation of a merger or consolidation of CMS Energy Corporationor any direct or indirect subsidiary of CMS Energy Corporation with any othercorporation or other entity, other than: (i) any such merger or consolidation whichinvolves either CMS Energy Corporation or any such subsidiary and would result inthe voting securities of CMS Energy Corporation outstanding immediately priorthereto continuing to represent (either by remaining outstanding or by beingconverted into voting securities of the surviving entity or any parent thereof), incombination with the ownership of any trustee or other fiduciary holding securitiesunder an employee benefit plan of CMS Energy Corporation or its Affiliates, atleast fifty-one percent (51%) of the combined voting power of the voting securitiesof CMS Energy Corporation or the surviving entity or any parent thereof outstandingimmediately after such merger or consolidation and immediately following which theindividuals who comprise the Board immediately prior thereto constitute at least amajority of the board of directors of CMS Energy Corporation, the entity survivingsuch merger or consolidation or, if CMS Energy Corporation or the entity survivingsuch merger is then a subsidiary, the ultimate parent thereof; or (ii) a merger orconsolidation 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 inthe securities beneficially owned by such Person any securities acquired directlyfrom CMS Energy Corporation or its Affiliates) representing thirty percent (30%) ormore of the combined voting power of CMS Energy Corporation’s then outstandingsecurities; or  (d) Either (1) the stockholders of CMS Energy Corporation approve a plan ofcomplete liquidation or dissolution of CMS Energy Corporation and such plan isconsummated, or (2) there is consummated an agreement for the sale, transfer ordisposition by CMS Energy Corporation of all or substantially all of CMS EnergyCorporation’s assets (or any transaction having a similar effect). For purposes ofclause (d)(2), (i) the sale, transfer or disposition of a majority of the shares ofcommon stock of Consumers Energy Company shall constitute a sale, transfer ordisposition of substantially all of the assets of CMS Energy Corporation and (ii)the sale, transfer or disposition of subsidiaries or affiliates of CMS EnergyCorporation, singly or in combinations, or their assets, only qualifies as a Changein Control if it satisfies the substantiality test contained in that clause and theBoard of CMS Energy Corporation’s determination in that regard is final. Inaddition, for purposes of clause (d)(2), the sale, transfer or disposition ofassets has to be in a transaction or series of transactions closing within six (6)months after the
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Tier IV Change in Control as of August, 2008   closing of the first transaction in the series, other than with an entity inwhich at least fifty-one (51%) of the combined voting power of the votingsecurities is owned by stockholders of CMS Energy Corporation in substantiallythe same proportions as their ownership of CMS Energy Corporation immediatelyprior to such transaction or transactions and immediately following which theindividuals who comprise the Board immediately prior thereto constitute at leasta majority of the board of directors of the entity to which such assets aresold, transferred or disposed or, if such entity is a subsidiary, the ultimateparent thereof.   Notwithstanding the foregoing clauses (a), (c) and (d), a “Change in Control” shall notbe deemed to have occurred by virtue of the consummation of any transaction or seriesof integrated transactions closing within six (6) months after the closing of the firsttransaction in the series immediately following which the record holders of the commonstock of CMS Energy Corporation immediately prior to such transaction or series oftransactions continue to have substantially the same proportionate ownership in anentity which owns all or substantially all of the assets of CMS Energy Corporationimmediately following such transaction or series of transactions. **2.11** **“Change in Control Severance Benefits”**has the meaning ascribed to the same inArticle 3 herein.  **2.12** **“Code”**means the United States Internal Revenue Code of 1986, as amended, and anysuccessors thereto.  **2.13** **“Committee”**means the Compensation and Human Resources Committee of the Board orany other committee appointed by the Board to perform the functions of the Compensationand Human Resources Committee. The Committee is responsible for the administration ofthis Agreement and shall interpret and apply the provisions of this Agreement.Notwithstanding the above, the Committee may obtain and rely upon advice fromconsultants, attorneys and advisors of its choice in making determinations concerningthis 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 administratorunder an individual and/or group disability policy covering the Executive that theExecutive is totally and permanently disabled as defined in the policy, or if there is nosuch coverage, then a disability that satisfies the requirements of total and permanentdisability under Section 22(e) of the Code.  **2.16** **“Effective Date”**means the date of this Agreement set forth in the first paragraphof this Agreement.  **2.17** **“Effective Date of Termination”**means the first day of any month following the dateon which a Qualifying Termination occurs, as provided under Section 2.28
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Tier IV Change in Control as of August, 2008   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. IfExecutive is otherwise eligible for retirement, he or she may elect to retire on theEffective Date of Termination without waiving any Change in Control Severance Benefitsto 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 asthe Employer.  **2.19** **“Entity”**means any corporation, partnership, limited liability company, jointventure, 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 thetwenty-four (24) months which follow a Change in Control and means, without theExecutive’s express prior consent, the occurrence of any one or more of the following: (a) The assignment to the Executive of duties materially inconsistentwith the Executive’s position (including status, offices, titles, and reportingrequirements), authority, duties or responsibilities as in effect on the EffectiveDate, or any action by the Employer which results in a material diminution of theExecutive’s position, authority, duties, or responsibilities as constituted as ofthe Effective Date (excluding an isolated, insubstantial, and inadvertent actionwhich is remedied by the Employer promptly after receipt of notice thereof givenby the Executive), provided, however that a Change in Control which results in theEmployer becoming controlled by another Entity, after which the Executive’sposition, 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 theduties he or she performs due to becoming controlled by such other Entity), shallnot constitute a material change in the Executive’s position, authority, duties orresponsibilities; or  (b) Materially reducing the Executive’s Base Salary; or  (c) Materially reducing the Executive’s targeted annual incentiveopportunity; or
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Tier IV Change in Control as of August, 2008 (d) Materially reducing the Executive’s targeted long-term incentiveopportunity; or  (e) A material failure to maintain the Executive’s aggregate amount ofbenefits under, or relative level of participation in, employee benefit orretirement plans, policies, practices, or arrangements of a material natureavailable to employees of CMS Energy Corporation and its Affiliates and in whichthe Executive participates as of the date of a Change in Control; or  (f) A material breach of this Agreement by the Employer which is notremedied by the Employer after receipt of notice of such breach delivered by theExecutive to the Committee; or  (g) Any successor company fails or refuses to assume the obligations owedto Executive under this Agreement in their entirety, as required by Section 8.1herein; or  (h) The Executive is required to be based at a location in excess ofthirty-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 immediatelyprior to a Change in Control, except for required travel on the Employer’s or CMSEnergy Corporation’s business to an extent substantially consistent with theExecutive’s prior business travel obligations.   Notwithstanding the above, (i) no amendment of, or termination and replacement of, anyannual or long term incentive plan, or benefit or retirement plan, policy, practice orarrangement referred to in (c) (d) or (e) above, shall be deemed to constitute GoodReason so long as the opportunities or amounts referred to therein remain unchangedafter such amendment or such termination and replacement; and (ii) the Executive mustprovide 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 Reasonas set forth above and provide a period of thirty (30) days for the Employer to remedythe circumstance giving rise to the Good Reason and thus not have to pay the Change inControl 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) daysshall constitute a waiver of such Good Reason by the Executive in that instance. Theremedying of any circumstances by Employer or the failure of the Executive to give suchnotice as aforesaid, shall not impair Executive’s right to claim Good Reason based upona recurrence of such circumstances or the occurrence of different circumstances withinthe time period (twenty-four (24) months following a Change in Control) specified inthe first sentence of this section. All provisions and interpretations relating toGood Reason are to be applied consistent with Section 409A of the Code and theapplicable 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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Tier IV Change in Control as of August, 2008 **2.26** **“Notice of Termination”**shall be provided for a Qualifying Termination and shallmean a notice which shall indicate the specific termination provision in this Agreementrelied upon, and shall set forth in reasonable detail the facts and circumstances claimedto provide a basis for a Qualifying Termination. The notice shall provide a specificdate (i) on which a Qualifying Termination has occurred and (ii) designated as theEffective Date of Termination. Such Notice of Termination when provided by the Executivefor Good Reason as set forth in Section 2.24 herein (prior to the expiration of theninety (90) day notice and after the thirty (30) day cure period described in Section2.24 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 theExchange Act and used in Sections 13(d) and 14(d) thereof, including a “group” asprovided in Section 13(d).  **2.28** **“Qualifying Termination”**means: (a) A termination of the Executive’s employment by the Employer on thedate of a Change in Control or during the twenty-four (24) months which follow aChange in Control for reasons other than death, Disability, or Cause pursuant toa Notice of Termination delivered to the Executive by the Employer; or  (b) A termination by the Executive for Good Reason on the date of aChange in Control or during the twenty-four (24) months which follow a Change inControl pursuant to a Notice of Termination delivered to the Employer by theExecutive. **2.29** **“Release”**means the signed release of claims and resignation of all positions asan 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 EnergyCompany,” dated December 1, 2007, as amended, or under the successor or replacement ofsuch retirement plan if it is then no longer in effect. [For the Executives coveredunder the defined contribution supplemental executive retirement plan, the followingdefinition shall be used: “means the retirement plan applicable to the Executive andentitled “Defined Contribution Supplemental Executive Retirement Plan” dated December 1,2007, as amended, or under the successor or replacement of such retirement plan if it isthen no longer in effect.]  **2.32** **“Total Payments”**has the meaning set forth in Section 6.1 herein.
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Tier IV Change in Control as of August, 2008**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 entitledto receive from the Employer Change in Control Severance Benefits, as described inSection 3.2 herein, if a Qualifying Termination of the Executive’s employmentsatisfying the definitions contained in Section 2.28(a) or (b) herein has occurredon the date of a Change in Control or within twenty-four (24) months immediatelyfollowing a Change in Control. Benefits received by the Executive under thepension plan and SERP (or any replacement or successor plans thereto) shall not beused as an offset to the level of Change in Control Severance Benefits owed toExecutive. The Effective Date of Termination will be the date the Executiveexperiences a separation from service with the service recipient, as those termsare defined under Section 409A.  (b) **No Change in Control Severance Benefits.**The Executive shall not beentitled to receive Change in Control Severance Benefits under this Agreement ifthe Executive’s employment with the Employer ends for reasons other than aQualifying Termination.  (c) **Waiver and Release.**The Executive shall sign and return to theEmployer a Release to be eligible for payment of Change in Control SeveranceBenefits under Section 3.2 herein. Attached hereto as Exhibit A and incorporatedby reference in this Agreement is the form of release Executive shall sign andreturn 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 Releasehas elapsed.  (d) **No Duplication of Severance Benefits**. If the Executive receives Changein Control Severance Benefits, any other severance benefits received by employeesnot covered by this Agreement, if any, to which the Executive is entitled shall bereduced on a dollar-for-dollar basis with respect to Change in Control SeveranceBenefits paid pursuant to this Agreement so that there is no duplication ofseverance benefits. **3.2** **Description of Change in Control Severance Benefits.**In the event the Executivebecomes entitled to receive Change in Control Severance Benefits, as provided in Section3.1(a) herein, the Employer (subject to Section 3.1(c)) shall provide the Executive withthe following: (a) A lump-sum amount paid within thirty (30) calendar days following theEffective 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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Tier IV Change in Control as of August, 2008   the Executive through and including the Effective Date of Termination. In theevent the Executive is terminated following a performance year under the OfficerIncentive Compensation Plan but prior to payment of a bonus for such year, theExecutive will not forfeit such bonus but shall receive any payment when the sameis paid to active employees. To the extent, if any, the Executive has elected todefer any bonus, any payments due under this provision corresponding to theamount of the deferral shall be paid or deferred in accordance with the termselected by the Executive with respect to said plan under which the bonus isdeferred.  (b) A lump-sum amount, paid within thirty (30) calendar days followingreturn of the signed Release (but not prior to the lapse of the seven (7) dayrevocation period), which shall be provided not more than fifteen (15) days afterdelivery to the Employer or delivery to the Executive, as applicable, of a Noticeof 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 bonusopportunity for the plan year in which the Qualifying Termination occurs.Notwithstanding the above, to the extent that at the time of the QualifyingTermination the Executive is age [62] [63] or older, the amount payable under thisprovision shall be equal to the product of (x) the sum of A and B above, multipliedby (y) a fraction the numerator of which shall be equal to the number of full andpartial months during the period commencing on the Effective Date of Terminationand 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 Committeeshall determine that the Executive is a bona fide executive as that term is definedin the Age Discrimination in Employment Act (“ADEA”) and that the other provisionsrelating to mandatory retirement of an executive under ADEA are satisfied.  (c) A lump-sum amount, paid within thirty (30) calendar days followingreturn of the signed Release (but not prior to the lapse of the seven (7) dayrevocation period), which shall be provided not more than fifteen (15) days afterdelivery 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 bonusopportunity for the plan year in which the Qualifying Termination occurs adjustedon a pro rata basis for the number of days that have elapsed to the Effective Dateof Termination during such plan year (as compared to the total plan year, 365days.) To the extent, if any, the Executive has elected to defer any bonus underthe applicable bonus plan, any payments due under this provision corresponding tothe amount of the deferral shall be paid in accordance with the payment termselected by the Executive with respect to the plan under which the bonus isdeferred.  (d) The Executive and the Employer agree that a portion of the lump-sumamount, payable under (b) above, shall be as consideration for the Executiveentering
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Tier IV Change in Control as of August, 2008   into the noncompete and other restrictive covenants as described in Article 5herein. The value of the consideration for the noncompete and other restrictivecovenants will be determined by an independent valuation consultant selected bythe Committee for the sole purpose of determining what portion of the totalconsideration (which total shall not change as a result of such computation)should, on the basis of value, be allocated to the noncompete and otherrestrictive covenants as described in Article 5 herein.  (e) The Employer shall provide the Executive continued health coverageor, at Employer’s option, payments to defray the cost of continued healthcoverage for [twenty-four (24)] [thirty-six (36] months following the EffectiveDate of Termination, generally in accordance with rules and provisions under theConsolidated Omnibus Budget Reconciliation Act of 1985, provided that (i) theEmployer shall pay 100% of the monthly cost of such continued health coverageduring such [twenty-four (24)] [thirty-six (36)] – month period and (ii) suchcontinued health coverage shall terminate when the Executive becomes eligible forcomparable health coverage under a new employer.  (f) Immediate extension (as allowable by Section 6.10 of Article VI ofthe plan entitled “CMS Energy Corporation Performance Incentive Stock Plan,” datedDecember 3, 1999, as amended) by one (1) year after the Effective Date ofTermination of the period for the Executive to exercise any outstanding stockoptions or stock appreciation rights granted by the Committee to Executivepursuant to said Article VI, subject to earlier termination of such option orstock appreciation right in accordance with the terms of such plan.  (g) Immediate vesting and distribution to the Executive (as allowable bythe second sentence of Section 7.2(h) of Article VII of the plan entitled “CMSEnergy Corporation Performance Incentive Stock Plan (PISP))” dated December 3,1999, as amended) within forty-five (45) days after delivery of the Notice ofTermination of all outstanding shares of restricted stock previously awarded toExecutive pursuant to said Article VII. Any portion of an award of restrictedstock subject to future performance goals based on absolute total shareholderreturn, will vest as if the target performance had been achieved. The portion ofany award based on relative shareholder return will vest pro rata based upon thenumber of days into the performance period up to the Change in Control date, usingthe target number of shares as the basis for the pro ration. For any award ofrestricted stock that is tenure based, the number of shares distributed to theExecutive shall assume that all requirements with respect to tenure are satisfiedby 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’sretirement benefits under the SERP will become fully vested as of the EffectiveDate of Termination and shall not be subject to further vesting requirements or toany forfeiture provisions. In addition the Executive shall be provided the
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Tier IV Change in Control as of August, 2008   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 IIIof the SERP, subject, however, to the total of Preference Service plus AccreditedService 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 IncentiveCompensation (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 fiveyears for purposes of computing Final Executive Pay under the SERP (as defined inthe SERP). [Note: For persons with 2 years of benefits under section 3.2(b), usebracketed substitute items in prior sentence] [For an executive in the definedcontribution supplemental executive retirement plan the following replaces theabove: “If the Executive is a participant in the SERP, the Executive’s accountbalance under the SERP will become fully vested as of the Effective Date ofTermination and shall not be subject to further vesting requirements or to anyforfeiture provisions. The Executive shall have added to his or her accountbalance under the SERP, within fifteen (15) days of delivery of the Notice ofTermination, an amount equal to fifteen percent (15%) [10% in the case of thoseExecutives in salary grades E-3 or E-4] of the amount paid to the Executive underclauses (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 toofficers and implemented with contracts with third parties, the benefit plandescriptions covering all employees and the retirement plan and the SERP plandescriptions and contracts with third parties covering officers in place at thetime of the Effective Date of Termination control the Executive’s treatment underthose plans and contracts. All rights of the Executive to indemnification as anofficer or an employee will be determined under any applicable indemnificationpolicy in effect at the time the matter giving rise to the need forindemnification is alleged to have occurred, or at the time immediately before theChange in Control, at the election of the Executive. For any other benefits onlyavailable to officers, if those benefits are not expressly discussed in clauses(a) through (h) of this Section 3.2, those benefits are terminated for theExecutive 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 aNotice of Termination which shall indicate the specific termination provision in thisAgreement relied upon, and shall set forth in reasonable detail the facts andcircumstances claimed to provide a basis for a Qualifying Termination. The Notice ofTermination shall also provide a specific date (i) on which a Qualifying
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Tier IV Change in Control as of August, 2008   Termination has occurred and (ii) that is designated as the Effective Date ofTermination.  **4.2** On or before the Effective Date of Termination, the Executive shall submit to theEmployer his or her written resignation as (i) an officer of the Employer and of allAffiliates and (ii) a member of the board of directors of the Employer and of allAffiliates.**Article 5. Restrictive Covenants and Clawback** **5.1** The following shall apply after any termination (including, without limitation, dueto 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 oftwenty-four (24) months after the date of the termination of the Executive’semployment, the Executive shall not: (i) directly or indirectly, separately oracting or conspiring with any Person or Entity whether or not employed by CMSEnergy Corporation or any of its Affiliates, engage in or prepare to engage in orhave 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 whatsoeverparticipate, engage, or have a financial or other interest in, any business whichis a Direct Competitor; provided, however, that notwithstanding anything to thecontrary 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 areregistered under Section 12 of the Exchange Act.    A “Direct Competitor” means an Entity engaged in the business of (1)(a) sellingelectric power or natural gas at retail or wholesale within the State of Michiganor (b) selling electric power at wholesale within the market area in which anelectric generating plant owned by an Affiliate of CMS Enterprises Company islocated or (c) storing natural gas within the State of Michigan or (d) generating,transmitting or distributing electricity or natural gas within the State ofMichigan, or (2) developing an electric generating plant within the State ofMichigan or a market area in which an electric generating plant owned by anAffiliate of CMS Enterprises Company is located. A “Direct Competitor” also meansany Entity that the Committee designates as a Direct Competitor, prior to thetermination date specified in a Notice of Termination, that it believes, in goodfaith, is a competitor to CMS Energy Corporation or its Affiliates.  (b) **Confidentiality.**The Employer has advised the Executive and theExecutive acknowledges that it is the policy of CMS Energy Corporation and itsAffiliates to maintain as secret and confidential all Protected Information (asdefined below), and that Protected Information has been and will be developed atsubstantial cost and effort to CMS Energy Corporation and its Affiliates. TheExecutive 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 regularcourse of the Executive’s employment), nor use in any manner, either during theterm of employment or after termination, for any reason, any ProtectedInformation, or cause any such information of CMS Energy Corporation and itsAffiliates to enter the public domain.    “Protected Information” means trade secrets, confidential and proprietary businessinformation of CMS Energy Corporation and its Affiliates and any other informationof 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 totime by CMS Energy Corporation and its Affiliates and their agents or employees,including the Executive; provided, however, that information that is in the publicdomain (other than as a result of a breach of this Agreement), approved forrelease by CMS Energy Corporation or its Affiliates or lawfully obtained fromthird parties who are not bound by a confidentiality agreement with CMS EnergyCorporation or its Affiliates, is not Protected Information. Notwithstanding theforegoing, nothing in this subsection is to be construed as prohibiting theExecutive from providing information to a state or federal agency, legislativebody or one of its committees or a court with jurisdiction when the Executive islegally required to do so, provided that promptly after being notified of suchrequirement the Executive notifies the Employer, or from disclosing ProtectedInformation to the Executive’s spouse, attorney and/or his or her personal tax andfinancial advisors as reasonably necessary or appropriate to advance theExecutive’s tax, financial and other personal planning (each an “Exempt Person”),provided*,*however, that any disclosure or use (beyond the specific purpose forwhich it was released to such Exempt Person) of Protected Information by an ExemptPerson 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 oftwelve (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 arrangeto have any other person or Entity employ or retain or solicit for employment orotherwise participate in the employment or retention of any person who (x) is anemployee or consultant of CMS Energy Corporation or its Affiliates or (y) was anemployee or consultant of CMS Energy Corporation or its Affiliates at any timeduring the twelve (12) month period immediately preceding the date of theoccurrence of the activity described in clause (i); or (ii) solicit suppliers orcustomers of CMS Energy Corporation or its Affiliates or induce any such person toterminate their relationship with them.  (d) **Cooperation.**The Executive shall fully and unconditionally cooperatewith CMS Energy Corporation and its Affiliates and their attorneys in connectionwith 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 tothe Executive’s employment or activities on behalf of CMS Energy Corporation andits Affiliates.  (e) **Nondisparagement.**The provisions of this Section 5.1(e) apply at alltimes following the termination of the Executive’s employment for any reason: TheExecutive shall not disparage CMS Energy Corporation or its Affiliates or theirofficers 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 unpaidexpert witness, advisor or consultant or otherwise on behalf of any person orEntity that has or may have any claim, demand, action, suit, cause of action, orjudgment against CMS Energy Corporation or its Affiliates, or in any regulatoryagency proceeding in a manner adverse to their interests. The executive officersand directors of CMS Energy Corporation and its Affiliates shall not disparage theExecutive or otherwise make comments harmful to the Executive’s reputation.Notwithstanding the foregoing, nothing in this Section 5.1(e) prohibits theExecutive or representatives of CMS Energy Corporation or its Affiliates fromtestifying truthfully under oath in any judicial, administrative or legislativeproceedings or in any arbitration, mediation or other similar proceedings where hisor her testimony has been legally compelled or pursuant to Section 7.1 herein.  (f) **Return of the Employer Property.**The Executive agrees that upontermination of employment he or she shall return all property of the Employer orany Affiliate now in his or her possession.  (g) **Clawback Relating to Illegal Acts or Restatement of Corporation’sFinancial Statements.**If, due to a restatement of CMS Energy Corporation’s or anAffiliate’s publicly disclosed financial statements or otherwise, the Executive issubject to an obligation to make a repayment to CMS Energy Corporation or anAffiliate pursuant to a clawback provision contained in a SERP Plan, the PISP, abonus plan or other benefit plan (a “benefit plan clawback provision”) of CMSEnergy Corporation or its Affiliate, it shall be a precondition to the obligationof Employer to make any payment under this Agreement, that the Executive fullyrepay to CMS Energy Corporation or its Affiliate any amounts owing under suchbenefit plan clawback provision. The payments under this Agreement are furthersubject to any provision of law which may require the Executive to forfeit or repayany benefits provided hereunder that are based upon a bonus or incentivecompensation, or equity compensation, in the event of a restatement of CMS EnergyCorporation’s or an Affiliate’s publicly disclosed accounting statements or otherillegal act, whether required by Section 304 of the Sarbanes-Oxley Act of 2002,federal securities law (including any rule or regulation promulgated by theSecurities and Exchange Commission), any state law, or any rule or regulationpromulgated by the applicable listing exchange or system on which CMS EnergyCorporation or an Affiliate lists its traded shares. To the degree any benefitshereunder are not otherwise forfeitable pursuant to the preceding sentences of thisSection 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 amountspaid under this Agreement that are computed on the basis of a target bonus oractual bonus under a bonus plan applicable to the Executive (a “bonus-basedpayment”), if the Board or Committee determines, on the basis of the clawbackprovisions in the bonus plan under which such bonus-based payments are computed,that the Executive would have been required to make a repayment of suchbonus-based payments had they been paid to the Executive directly under such bonusplan rather than under this Agreement. The rights set forth in this Agreementconcerning the right of CMS Energy Corporation, an Affiliate and/or Employer to aclawback are in addition to any other rights to recovery or damages available atlaw or equity and are not a limitation of such rights.  (h) **Enforcement.**The parties to this Agreement acknowledge that theservices of the Executive are unique and extraordinary and that a breach of anyprovision of this Section 5.1 will cause irreparable harm to the Employer.Accordingly, the Executive agrees that notwithstanding the provisions of Section7.1 herein, the Employer has the right to seek to enforce the noncompete and otherrestrictive covenants contained in this Section 5.1 in a court of law or equity andthe Executive hereby consents to the imposition of an injunction or a temporaryrestraining order or such other equitable relief as necessary to protect the rightsof the Employer under this Agreement.**Article 6. Excise Tax Equalization Payment** **6.1** **Excise Tax Equalization Payment.**In the event that the Executive becomes entitledto Change in Control Severance Benefits or any other payment or benefit under thisAgreement, or under any other agreement, plan or arrangement for which Executive iseligible with (1) the Employer, (2) any Person or Entity whose actions result in a Changein Control, or (3) CMS Energy Corporation or any of its Affiliates (all of such paymentsand benefits collectively referred to as the “Total Payments”), and if all or any part ofthe Total Payments will be subject to the tax (the “Excise Tax”) imposed by Sections 280Gand 4999 of the Code (or any similar tax that may hereafter be imposed), the Employershall 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 ofany Excise Tax upon the Total Payments and any federal, state, and local income andemployment tax, penalties, interest, and Excise Tax upon the Gross-Up Payment providedfor 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 taxableyear of the Executive next following the taxable year in which the Executive remits therelated taxes.    For purposes of determining the amount of the Gross-Up Payment, the Committee shallselect in its sole discretion an accounting or other consulting firm (other than theEmployer’s and CMS Energy Corporation’s auditors) to perform such calculation. Inaddition, 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-UpPayment is to be made, and state and local income taxes at the highest marginal rate oftaxation in the state and locality of the Executive’s residence on the Effective Date ofTermination, net of the maximum reduction in federal income taxes which could be obtainedfrom deduction of such state and local taxes.  **6.2** **Subsequent Recalculation.**In the event the Internal Revenue Service adjusts thecomputation under Section 6.1 herein so that the Executive did not receive the greatestnet benefit, the Employer shall reimburse the Executive for the full amount necessary tomake the Executive whole, plus interest on the reimbursed amount at 120% of the rateprovided in Section 1274(b)(2)(B) of the Code. In the event that the Excise Tax isfinally determined to be less than the amount taken into account hereunder in calculatingthe Gross-Up Payment, the Executive shall repay the Employer within thirty (30) businessdays following the time that the amount of such reduction in the Excise Tax is finallydetermined, the portion of the Gross-Up Payment attributable to such reduction (plus thatportion of the Gross-Up Payment attributable to the Excise Tax and federal, state andlocal income and employment taxes imposed on the Gross-Up Payment being repaid by theExecutive) to the extent that such repayment results in a reduction in the Excise Tax anda dollar-for-dollar reduction in the Executive’s taxable income and wages for purposes offederal, state and local income and employment taxes, plus interest on the amount of suchrepayment 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 3.2herein shall be reduced in the aggregate by up to 10%, if such a reduction will causethere to be no Excise Tax incurred. Any such reduction shall be the minimum amountnecessary to eliminate the Excise Tax, and if the amount to eliminate the Excise Tax is inexcess 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 paymentswill be reduced.**Article 7. Dispute Resolution and Notice** **7.1** **Dispute Resolution.**Any dispute or controversy between the Executive and the Employerarising 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 suchsubmission does not result in mutually agreeable resolution within sixty (60) days thereof,such dispute or controversy shall be settled by final and binding arbitration. Sucharbitration shall be conducted before a single arbitrator selected by the parties to beconducted in Jackson, Michigan. The arbitration will be conducted in accordance with therules 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 areunable to agree within thirty (30) days on such a single arbitrator, such Association shallselect such arbitrator. The arbitrator shall not have authority to fashion a remedy thatincludes 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 fromawarding injunctive relief of any kind, whether mandatory or prohibitory. Judgment maybe 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 ofconducting the arbitration proceeding, but each party shall bear the cost of its ownlegal counsel and experts and other out-of-pocket expenditures. Notwithstanding theforegoing, the Executive and the Employer acknowledge that the enforcement of theEmployer’s rights under Article 5 herein are unique and agree that the Employer is notlimited to the remedy of arbitration but may elect the remedy of its choice includingfiling suit in a court of law or equity and the Executive agrees that the Employer hasthe right to obtain an injunction and/or a temporary restraining order to protect itsrights.  **7.2** **Notice.**Any notices, requests, demands, or other communications provided for bythis Agreement shall be in writing and sent by registered or certified mail to theExecutive at the address set forth beneath his or her signature on the last page of thisAgreement or, to the Employer, at One Energy Plaza, Jackson, Michigan 49201, Attention:Corporate Secretary. Notices, requests, demands or other communications may also bedelivered by messenger, courier service or other electronic means and are sufficient ifactually 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, orotherwise) to the business of CMS Energy Corporation or purchaser of all or substantiallyall of the assets of CMS Energy Corporation shall be required to expressly assume andagree to perform under this Agreement in the same manner and to the same extent that theEmployer would be required to perform if no such succession had taken place. ThisAgreement 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 beenforceable by the Executive’s personal or legal representatives, executors,administrators, successors, heirs, distributees, devisees, and legatees. If theExecutive dies while any amount would still be payable to him or her hereunder had he orshe continued to live, all such amounts, unless otherwise provided herein, shall be paidin accordance with the terms of this Agreement to the Executive’s Beneficiary. If theExecutive has not named a Beneficiary, then such amounts shall be paid to the Executive’sdevisee, legatee, or other designee, or if there is no such designee, to the Executive’sestate.
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Tier IV Change in Control as of August, 2008**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 writtenseparation agreement entered into by the Executive and CMS Energy Corporation, may beterminated by either the Executive or the Employer at any time, subject to applicablelaw. Further, the Executive has no right to be an officer of CMS Energy Corporation orany 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 entireagreement of the parties with respect thereto. Without limiting the generality of theforegoing sentence, this Agreement completely supersedes, cancels, voids and renders ofno further force and effect any and all other change in control agreements, and othersimilar agreements, communications, representations, promises, covenants andarrangements, whether oral or written, between the Employer and the Executive and betweenthe Executive and CMS Energy Corporation or any of its Affiliates that may have takenplace or been executed prior to the Effective Date and which may address the subjectmatters contained herein. Notwithstanding the above, this Agreement is supplemental toand does not replace any written separation agreement entered into between the partiesthat is not contingent on a Change in Control, provided however that in no event will theExecutive be entitled to payments under this Agreement that would be duplicative of anypayment 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 bedetermined to be invalid or unenforceable for any reason, the remaining provisions ofthis Agreement shall be unaffected thereby and shall remain in full force and effect, andthe parties shall negotiate in good faith to accomplish the purposes and amend thisAgreement so as, to the extent possible under the law, to carry out the original intentof the provision or portion determined to be invalid or unenforceable.  **9.4** **Tax.**The Employer may withhold from any benefits payable under this Agreement anyauthorized deductions and all federal, state, city, or other taxes as may be requiredpursuant to any law or governmental regulation or ruling. Notwithstanding anythingcontained in this Agreement to the contrary, if the Executive is a “specified employee”(determined in accordance with Section 409A and Treasury Regulation Section1.409A-3(i)(2)) as of the Effective Date of Termination, and if any payment, benefit orentitlement provided for in this Agreement or otherwise both (i) constitutes a “deferralof compensation” within the meaning of Section 409A and (ii) cannot be paid or providedin a manner otherwise provided herein or otherwise without subjecting the Executive toadditional 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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Tier IV Change in Control as of August, 2008   following the Effective Date of Termination shall be paid or provided to the Executive ina lump sum cash payment to be made on the earlier of (x) the Executive’s death or (y) thefirst day that is more than six (6) months immediately following the Effective Date ofTermination (or, if different, the date that qualifies as a “separation from service” (assuch term is used under Section 409A)). Each payment to be made under this Agreementshall be treated as a separate payment for purposes of Section 409A. Notwithstandinganything contained in this Agreement to the contrary, the Employer shall have theunilateral right to amend this Agreement at any time for the sole purpose of complyingwith Section 409A.  **9.5** **Beneficiaries.**The Executive may designate one (1) or more persons or Entities asthe primary and/or contingent beneficiaries of any amounts to be received under thisAgreement. Such designation must be in the form of a signed writing on a form providedby 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 asprovided in the last sentence of this paragraph, the Employer’s and CMS EnergyCorporation’s obligations to make the payments and provide the benefits to the Executivespecified herein shall be absolute and unconditional, and shall not be affected by anycircumstances, including, without limitation, any offset, counterclaim, defense, or otherright which the Employer, CMS Energy Corporation or any of its Affiliates may haveagainst the Executive or anyone else. Except as otherwise provided in this Agreement, allamounts payable by the Employer hereunder shall be paid without notice or demand. Eachand every payment made hereunder by the Employer shall be final, but subject to theprovisions of the next sentence. If the Executive should seek to litigate this Agreementor the subject matters addressed herein in a state or federal court, subject to therequirements 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 cashconsideration paid to the Executive under this Agreement prior thereto and (ii) anypayments then or thereafter due to the Executive under this Agreement shall be withhelduntil said litigation is finally resolved.    The Executive shall not be obligated to seek other employment in mitigation of theamounts payable or arrangements made under any provision of this Agreement, and theobtaining of any such other employment, provided such other employment is not a violationof the provisions of Article 5 herein, shall in no event effect any reduction of theEmployer’s obligations to make the payments and arrangements required to be made underthis Agreement.  **9.7** **Contractual Rights to Benefits.**Subject to approval and ratification by theCommittee, this Agreement establishes and vests in the Executive a contractual right tothe benefits to which he or she is entitled hereunder. However, nothing herein containedshall require or be deemed to require, or prohibit or be deemed to prohibit, the Employerto segregate, earmark, or otherwise set aside any funds or other assets, in trust orotherwise, to provide for any payments to be made or required hereunder.
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Tier IV Change in Control as of August, 2008 **9.8** **Modification.**Except as otherwise provided in this Agreement, this Agreement shallnot be varied, altered, modified, canceled, changed, or in any way amended except bymutual agreement of the parties in a written instrument executed by the parties hereto ortheir legal representatives.  **9.9** **Counterparts and Headings.**This Agreement may be executed in one (1) or morecounterparts, each of which shall be deemed to be an original, but all of which togetherwill constitute one and the same Agreement. Signatures transmitted via facsimile shallbe regarded by the parties as original signatures. The headings of the various sectionsand subsections of this Agreement shall not limit or affect the terms and provisions ofthis Agreement.  **9.10** **Representation.**Each of the Executive and the Employer represents and warrantsthat this Agreement is a legal, valid and binding agreement, enforceable in accordancewith its terms, and does not conflict with any other agreement to which he, she or it isa party. The Executive acknowledges that he or she has had an opportunity to consultwith his or her legal and financial advisors before executing and delivering thisAgreement, and has read and understands this Agreement.  **9.11** **Applicable Law.**This Agreement shall be governed and construed in accordance withthe 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     INWITNESS 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 ofthe           day of           , 20     , pursuantto Michigan law, among           (the “Executive”), an individual, and          , a Michigan corporation (the “Employer”) is a general release of claims againstthe 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 severancebenefits under a Change in ControlAgreement. dated as of           ,20     between the Executive and the Employer (the “CICAgreement”) provided that the Executive first executes and delivers to the Employer a prescribedform 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 shallhave the same definition in this Agreement if not separately and differently defined herein, suchterms being recognizable by initial caps; and**WHEREAS**, this General Release Agreement satisfies the condition for receipt of Change in ControlSeverance Benefits under Article 3 of the CIC Agreement.**NOW THEREFORE**, in consideration of the covenants undertaken and the releases contained in thisAgreement, 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 agreesand reaffirms that the only monetary and other consideration to which [he] [she] is entitled due tothe termination of employment is that provided to the Executive pursuant to the CIC SeveranceAgreement, 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 tothe Employer all of its property and all the property of any of the CMS Companies which theExecutive 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 (describedin 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, 2008and each of them, hereby covenants not to sue and fully releases and discharges the Employer, CMSEnergy Corporation, and all of their subsidiaries and affiliates, past and present, and each ofthem as well as its and their trustees, directors, officers, agents, attorneys, insurers,employees, stockholders, representatives, assigns, and successors, past and present, and each ofthem, hereinafter together and collectively referred to as “Releasees,” with respect to and fromany 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 orunknown, suspected or unsuspected, and whether or not concealed or hidden, which the Executive nowowns or holds or has at any time on or prior to the Effective Date of Termination owned or held asagainst said Releasees, arising out of or in any way connected with the Executive’s employmentrelationship with the Employer or the Releasees, or the Executive’s termination of employment orany 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 ofsaid Releasees, or any of them, committed or omitted prior to the date of this Agreement, includingbut not limited to, claims based on any express or implied contract of employment which may havebeen alleged to exist between the Employer, the Releasees and the Executive, or under the AgeDiscrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §621, et seq, as amended by the OlderWorkers 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 CivilRights Act, MCLA §37.2101, et seq, the Rehabilitation Act of 1973, 29 U.S.C. §701, et seq, asamended, the Americans with Disabilities Act of 1990, 42 U.S.C. §12206, et seq, as amended, or thePersons with Disabilities Civil Rights Act, MCLA §37.1101, et seq, as amended, or any otherfederal, state or local law, rule, regulation or ordinance, and claims for severance pay, sickleave, holiday pay, and any other fringe benefit provided to the Executive by the Employer orReleasees except for those rights preserved by Section 3.2(i) of the CIC Agreement. Nothing in thisAgreement is intended to, nor do the Executive and the Employer, waive the right to enforce the CICAgreement.**4. REVOCATION OF RELEASE BY EXECUTIVE**The Executive specifically acknowledges for purposes of this Agreement that: (1) the Executive hasbeen advised by the Employer to consult with an attorney prior to signing this Agreement; (2) theExecutive has been given [21] [45] days to consider the release; and (3) the Executive may revokethis Agreement within 7 days of signing this Agreement. In the event of such a revocation, theExecutive 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 beeffective, must be in writing and either (i) postmarked within 7 days of execution of thisAgreement and addressed to the attention of           , CMS Energy Corporation, at One EnergyPlaza, Jackson, Michigan 49201, or (ii) hand delivered to          within 7 days of executionof this Agreement. The Executive understands that if revocation is made by mail, mailing bycertified mail, return receipt requested, is recommended to show proof of mailing. IF THE EXECUTIVESIGNS 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, 2008THAT THE EXECUTIVE KNOWINGLY AND VOLUNTARILY DECIDED TO SIGN THE AGREEMENT AFTER CONSIDERING ITLESS THAN [21] [45] DAYS AND [HIS] [HER] DECISION TO DO SO WAS NOT INDUCED BY THE EMPLOYER THROUGHFRAUD, MISREPRESENTATION OR A THREAT TO WITHDRAW OR ALTER THE OFFER THE SEVERANCE BENEFITS PAYABLEUNDER 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 ENFORCEABLEONLY 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 ofMichigan, without regard to its conflicts of law principles. In the event that any provision orportion of this Agreement shall be determined to be invalid or unenforceable for any reason, theremaining provisions of this Agreement shall be unaffected thereby and shall remain in full forceand effect, and the parties shall negotiate in good faith to accomplish the purposes and amend thisAgreement so as, to the extent possible under the law, to carry out the original intent of theprovision 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 theopportunity to consult with attorneys of their own choice, that the Employer and the Executive haveread the terms of this Agreement and that those terms are fully understood and voluntarily acceptedby them.**7. DISPUTE RESOLUTION**The provisions of Article 7, Dispute Resolution and Notice, of the CIC Agreement, shall apply toand 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 awritten 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 bean original, but all of which together will constitute one and the same Agreement. Signaturestransmitted via facsimile shall be regarded by the parties as original signatures. The headings ofthe various sections and subsections of this Agreement shall not limit or affect the terms andprovisions 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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