Exhibit 1.1
CMS ENERGY CORPORATION
9,200,000 Depositary Shares,
Each representing a 1/1,000th interest in a share of
4.200% Cumulative Redeemable Perpetual Preferred Stock, Series C
(Liquidation Preference Equivalent to $25.00 per Depositary Share)
______________________
Underwriting Agreement
June 24, 2021
To the Representatives named in Schedule I hereto
of the Underwriters named in Schedule II hereto
Ladies and Gentlemen:
CMS Energy Corporation, a
Michigan corporation (the “Company”), proposes to issue and sell to the several Underwriters (as defined in Section
12 hereof) a total of 9,200,000 depositary shares (the “Securities”), each representing a 1/1,000th interest in a share
of the Company’s 4.200% Cumulative Redeemable Perpetual Preferred Stock, Series C (Liquidation Preference of $25,000 per share)
(the “Preferred Stock”), subject to the terms and conditions set forth herein. The Underwriters have designated the
Representatives (as defined in Section 12 hereof) to execute this Agreement on their behalf and to act for them in the manner provided
in this Agreement. The shares of Preferred Stock represented by the Securities (the “Preferred Shares” and, together
with the Securities, the “Offered Securities”) will, when issued, be deposited by the Company against delivery of depositary
receipts (the “Depositary Receipts”), which will evidence the Securities and will be issued by Equiniti Trust Company
d/b/a EQ Shareowner Services (the “Depositary”) under a deposit agreement (the “Deposit Agreement”),
to be dated the Time of Purchase (as defined in Section 2 hereof), among the Company, the Depositary and the holders from time to time
of the Depositary Receipts issued thereunder. The Preferred Stock shall have the designations, preferences, rights, powers and restrictions
set forth in the Company’s Restated Articles of Incorporation, as amended by the certificate of designation relating to the Preferred
Stock (the “Certificate of Designation”) to be filed by the Company on or prior to the Time of Purchase with the Michigan
Department of Licensing and Regulatory Affairs, Bureau of Commercial Services. The Company’s Restated Articles of Incorporation,
as amended by the Certificate of Designation, is herein referred to as the “Restated Articles of Incorporation”.
The Company has prepared
and filed with the Securities and Exchange Commission (the “Commission”), in accordance with the provisions of
the Securities Act of 1933, as amended (the “Act”), a registration statement on Form S-3 (Registration No.
333-236742), including a prospectus relating to the Offered Securities, and such registration statement has become effective under
the Act. The registration statement, at the time it became effective or, if any post-effective amendment thereto has been filed with
the Commission, at the time the most recent post-effective amendment thereto became effective, and as it may have been thereafter
amended to the date of this Agreement (including the documents then incorporated by reference therein), is herein referred to as the
“Registration Statement”. The Registration Statement at the time it originally became effective is referred to
hereinafter as the “Original Registration Statement”. If the Company has filed, or will file, an abbreviated
registration statement to register additional Offered Securities pursuant to Rule 462(b) under the Act (the “Rule 462(b)
Registration Statement”), then any reference herein to the term “Registration Statement” shall be
deemed to include such Rule 462(b) Registration Statement. The prospectus forming a part of the Registration Statement at the time
the Registration Statement became effective (including the documents then incorporated by reference therein) is herein referred to
as the “Basic Prospectus”; provided, that, in the event that the Basic Prospectus shall have been amended
or revised prior to the execution of this Agreement, or if the Company shall have supplemented the Basic Prospectus by filing any
documents pursuant to Section 13, 14 or 15 of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), after the time the Registration Statement became effective and prior to the execution of this Agreement, which
documents are deemed to be incorporated in the Basic Prospectus, the term “Basic Prospectus” shall also mean such
prospectus as so amended, revised or supplemented. The Basic Prospectus, as amended and supplemented immediately prior to the time
when sales of the Offered Securities were first made or such other time as agreed by the Company and the Representatives (the
“Time of Sale”), is hereinafter referred to, together with any issuer free writing prospectus (as defined in Rule
433 under the Act) relating to the Offered Securities (each, an “Issuer Free Writing Prospectus”) and other
documents listed in Schedule III hereto under the heading “Information Constituting Part of the Time of Sale
Prospectus”, as the “Time of Sale Prospectus”. The Basic Prospectus, as amended and supplemented
immediately prior to the Time of Sale, is hereinafter referred to as the “Preliminary Prospectus”. The Basic
Prospectus, as it shall be revised or supplemented to reflect the final terms of the offering and sale of the Offered Securities by
a prospectus supplement relating to the Offered Securities, and in the form to be filed with the Commission pursuant to Rule 424
under the Act, is hereinafter referred to as the “Prospectus”. Any reference herein to the terms
“amend”, “amendment” or “supplement” with respect to the Registration Statement, the Preliminary
Prospectus, the Time of Sale Prospectus or the Prospectus shall be deemed to include amendments or supplements to the Registration
Statement, the Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus, as the case may be, including any
post-effective amendment to the Registration Statement and any prospectus supplement forming a part of the Prospectus relating to
the Offered Securities filed with the Commission pursuant to Rule 424(b) under the Act, and documents incorporated by reference
therein or deemed to be a part of and included therein, after the date of this Agreement and prior to the termination of the
offering of the Offered Securities by the Underwriters.
1.
Purchase and Sale. Upon the basis of the representations, warranties and covenants and subject to the terms and conditions
herein set forth, the Company agrees to issue and sell to the respective Underwriters, severally and not jointly, and the respective Underwriters,
severally and not jointly, agree to purchase from the Company, the respective numbers of shares of Securities set forth opposite their
names in Schedule II hereto at the purchase price of (a) $24.5000 per share (being an amount equal to the public offering price
of the Securities less $0.5000 per share) for 6,063,000 shares of Securities sold to institutional investors and (b) $24.2125 per share
(being an amount equal to the public offering price of the Securities less $0.7875 per share) for 3,137,000 shares of Securities sold
to retail investors. The Underwriters will offer the Securities to purchasers initially at a price equal to $25.0000 per share. Such price
may be changed at any time without notice.
2.
Payment and Delivery. The Company shall deliver, or cause to be delivered, to the Representatives for the accounts of the
several Underwriters, through the facilities of The Depository Trust Company (“DTC”), a certificate for the Securities
at the Time of Purchase, against the irrevocable release of a wire transfer of immediately available funds to the order of the Company
for the amount of the aggregate purchase price payable pursuant to Section 1 hereof, with any transfer taxes payable in connection with
such delivery of Securities duly paid by the Company. The certificate for the Securities shall be a definitive global certificate in book-entry
form for clearance through DTC. Delivery of the certificate for the Securities shall be made at the offices of Pillsbury Winthrop Shaw
Pittman LLP (“Pillsbury”), 31 West 52nd Street, New York, New York 10019-6131 (or such other place or places of delivery
as shall be agreed upon by the Company and the Representatives) at 10:00 a.m., New York City time, on July 1, 2021 (or such other time
and date as the Company and the Representatives shall agree), unless postponed in accordance with the provisions of Section 8 hereof.
The day and time at which payment and delivery for the Securities are to be made is herein called the “Time of Purchase”.
3.
Conditions of Underwriters’ Obligations. The several obligations of the Underwriters hereunder are subject to the
accuracy of the representations and warranties and other statements of the Company made herein at the Time of Sale and at and as of the
Time of Purchase on the part of the Company, to the performance by the Company of all of its obligations hereunder theretofore to be performed
and to the following other conditions.
(a) That
all legal proceedings to be taken in connection with the issue and sale of the Offered Securities shall be reasonably satisfactory in
form and substance to Pillsbury, counsel to the Underwriters.
(b) That, at the Time of Purchase, the Underwriters shall be furnished with the following opinions and letter, as the case may be,
dated the day of the Time of Purchase:
(i)
opinion of Melissa M. Gleespen, Esq., Vice President, Corporate Secretary and Chief Compliance Officer of the Company, substantially
to the effect set forth in Exhibit A attached hereto;
(ii)
opinion of Miller, Canfield, Paddock and Stone, P.L.C., special counsel to the Company, substantially to the effect set forth in
Exhibit B attached hereto;
(iii)
opinion and letter of Sidley Austin LLP, special counsel to the Company, substantially to the effect set forth in Exhibit C
attached hereto; and
(iv)
opinion of Pillsbury, counsel to the Underwriters, as to such matters relating to the Offered Securities and the transactions contemplated
hereby as the Underwriters may reasonably request.
(c) That,
on the date hereof and on the date of the Time of Purchase, the Representatives shall have received a letter from PricewaterhouseCoopers
LLP in form and substance satisfactory to the Underwriters, dated such date, (i) confirming that they are an independent registered public
accounting firm with respect to the Company within the meaning of the Act, the applicable published rules and regulations of the Commission
thereunder and the applicable published rules and regulations of the Public Company Accounting Oversight Board, (ii) stating that in
their opinion the financial statements examined by them and incorporated by reference in the Preliminary Prospectus and the Prospectus
complied as to form in all material respects with the applicable accounting requirements of the Commission, including the applicable
published rules and regulations of the Commission, and (iii) covering, as of a date not more than five days prior to the date of each
such letter, such other matters as the Underwriters reasonably request.
(d)
That, subsequent to the Time of Sale or, if earlier, the dates as of which information is given in the Time of Sale Prospectus
(exclusive of any amendment or supplement thereto), there shall not have been (i) any change specified in the letter or letters referred
to in Section 3(c) hereof or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial
or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries taken as a whole, except as referred to
in or contemplated in the Time of Sale Prospectus (exclusive of any such amendment or supplement thereto), the effect of which, in any
case referred to in clause (i) or (ii) above, is, in the judgment of the Representatives, so material and adverse as to make it impractical
or inadvisable to proceed with the offering or delivery of the Offered Securities as contemplated in the Time of Sale Prospectus (exclusive
of any such amendment or supplement thereto).
(e)
That no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no
proceeding for that purpose shall have been initiated or threatened by the Commission, and the Company shall not have received from the
Commission any notice pursuant to Rule 401(g)(2) under the Act objecting to the use of the automatic shelf registration statement form.
(f)
That, at the Time of Purchase, the Company shall have delivered to the Representatives a certificate of an executive officer of
the Company to the effect that, to the best of his or her knowledge, information and belief, (i) there shall have been no material adverse
change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries taken
as a whole from that set forth in the Time of Sale Prospectus (other than changes referred to in or contemplated by the Time of Sale Prospectus)
and (ii) the representations and warranties of the Company in this Agreement are true and correct on and as of the Time of Purchase with
the same effect as if made at the Time of Purchase, and the Company has complied with all the agreements and satisfied all the conditions
on its part to be performed or satisfied hereunder at or prior to the Time of Purchase.
(g)
That the Company shall have furnished the Representatives signed counterparts of the Deposit Agreement.
(h)
That the Company shall have performed such of its obligations under this Agreement as are to be performed at or before the Time
of Purchase by the terms hereof.
(i)
That the Company shall have complied with the provisions of Section 4(e) hereof with respect to the furnishing of the Time of Sale
Prospectus and the Prospectus.
(j)
That, at the Time of Purchase, the Company shall have delivered to the Representatives a letter, dated on or prior to the Time
of Purchase, from each of Standard & Poor’s Ratings Services (“S&P”), Moody’s Investors Service,
Inc. (“Moody’s”) and Fitch, Inc. (“Fitch”), or other evidence reasonably satisfactory to the
Representatives, confirming that the Offered Securities have been assigned the ratings set forth in the Final Term Sheet (as defined in
Section 4(w) hereof); and, between the date hereof and the Time of Purchase, there shall have been no downgrading or withdrawal of any
investment ratings of the Securities, securities of Consumers Energy Company or other securities of the Company by any nationally recognized
statistical rating organization (as such term is defined in Section 3(a)(62) of the Exchange Act), and no such rating organization shall
have publicly announced that it has under surveillance or review, with possible negative implications, any such rating.
(k)
That any filing of the Preliminary Prospectus and the Prospectus and any supplements thereto required pursuant to Rule 424 under
the Act shall have been made in compliance with and in the time periods provided by Rule 424 under the Act and that the Final Term Sheet
and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission
within the applicable time period prescribed for such filing by Rule 164 and Rule 433 under the Act.
(l)
That, at the Time of Purchase, the Securities shall be eligible for clearance and settlement through DTC.
(m)
That the Company shall have paid the applicable filing fees to the Commission relating to the Offered Securities within the time
required by Rule 456(b)(1) under the Act (without regard to the proviso thereof).
(n)
That, on or prior to the Time of Purchase, the Company shall have filed the Certificate of Designation, in form and substance reasonably
satisfactory to the Representatives, with, and such filing shall have been accepted by, the Michigan Department of Licensing and Regulatory
Affairs, Bureau of Commercial Services.
(o)
That any additional documents or agreements reasonably requested by the Underwriters or their counsel to permit the Underwriters
to perform their obligations or permit their counsel to deliver opinions hereunder shall have been provided to them.
4.
Certain Covenants of the Company. In further consideration of the agreements of the Underwriters herein contained, the Company
covenants as follows.
(a) To
promptly transmit copies of the Preliminary Prospectus and the Prospectus, and any amendments or supplements thereto, to the Commission
for filing pursuant to Rule 424 under the Act.
(b) During
the period when a prospectus relating to any of the Offered Securities (or, in lieu thereof, the notice referred to in Rule 173(a)
under the Act) is required to be delivered under the Act by any Underwriter or any dealer, to file promptly all documents required
to be filed with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act; to promptly file all material
required to be filed by the Company with the Commission pursuant to Rule 433(d) under the Act; and to promptly notify the
Underwriters of any written notice given to the Company by any of the rating organizations referred to in Section 3(j) hereof of any
intended downgrade in or withdrawal of any rating of any securities of the Company or Consumers Energy Company or of any other
intended change in any such rating that does not indicate the direction of the possible change of such rating.
(c)
To deliver to each of the Representatives, upon request, a conformed copy of the Registration Statement and any amendments thereto
(including all exhibits thereto) and full and complete sets of all comments, if any, of the Commission or its staff and all responses
thereto with respect to the Registration Statement and any amendments thereto and to furnish to the Representatives, for each of the Underwriters,
conformed copies of the Registration Statement and any amendments thereto without exhibits.
(d)
As soon as the Company is advised thereof, to advise the Representatives and confirm the advice in writing of: (i) the effectiveness
of any amendment to the Registration Statement (and the Company agrees to use its best efforts to cause any post-effective amendments
to the Registration Statement to become effective as promptly as possible); (ii) any request made by the Commission for amendments to
the Registration Statement, Time of Sale Prospectus or Prospectus or for additional information with respect thereto; (iii) the suspension
of qualification or suspension of exemption from qualification of the Offered Securities for offering or sale under blue sky or state
securities laws or the initiation or threat or any proceedings for that purpose; and (iv) the entry of a stop order suspending the effectiveness
of the Registration Statement or the initiation or threat of any proceedings for that purpose (and the Company agrees to use every reasonable
effort to prevent the issuance of any such suspension or stop order and, if such a suspension or stop order should be entered, to use
every reasonable effort to obtain the lifting or removal thereof at the earliest possible time).
(e)
To deliver to the Underwriters, without charge, as soon as practicable, and from time to time during such period of time after
the date of the Preliminary Prospectus or the Prospectus, as the case may be, as they are required by law to deliver a prospectus (or,
in lieu thereof, the notice referred to in Rule 173(a) under the Act), as many copies of the Preliminary Prospectus, the Prospectus or
any other Issuer Free Writing Prospectus, as the case may be (as supplemented or amended if the Company shall have made any supplements
or amendments thereto), as the Representatives may reasonably request; and, in case any Underwriter is required to deliver a prospectus
(or, in lieu thereof, the notice referred to in Rule 173(a) under the Act) after the expiration of nine months after the date of the Preliminary
Prospectus or the Prospectus, as the case may be, to furnish to the Representatives, upon request, at the expense of such Underwriter,
a reasonable quantity of a supplemental prospectus or of supplements to the Preliminary Prospectus or the Prospectus, as the case may
be, complying with Section 10(a)(3) of the Act.
(f) For
such period of time as the Underwriters are required by law or customary practice to deliver a prospectus in respect of the Offered
Securities (or, in lieu thereof, the notice referred to in Rule 173(a) under the Act), if any event shall have occurred as a result
of which it is necessary to amend or supplement the Time of Sale Prospectus or the Prospectus in order to make the statements
therein, in the light of the circumstances when the Time of Sale Prospectus or the Prospectus (or, in lieu thereof, the notice
referred to in Rule 173(a) under the Act), as the case may be, is delivered to a purchaser, not misleading, or if it becomes
necessary to amend or supplement the Registration Statement or amend the Time of Sale Prospectus or the Prospectus to comply with
law, including in connection with the use or delivery of the Prospectus, to forthwith prepare and file with the Commission (subject
to Section 4(m) hereof) an appropriate amendment or supplement to the Registration Statement, the Time of Sale Prospectus or the
Prospectus, as the case may be, and deliver to the Underwriters, without charge, such number of copies thereof as may be reasonably
requested, and use its best efforts to have any necessary amendment to the Registration Statement declared effective as soon as
practicable to avoid any disruption in use of the Prospectus.
(g)
During the period when a prospectus relating to any of the Offered Securities (or, in lieu thereof, the notice referred to in Rule
173(a) under the Act) is required to be delivered under the Act by any Underwriter or any dealer, to comply, at the Company’s own
expense, with all requirements imposed on the Company by the Act, as now and hereafter amended, and by the rules and regulations of the
Commission thereunder, as from time to time in force, so far as necessary to permit the continuance of sales of or dealing in the Offered
Securities during such period in accordance with the provisions hereof and as contemplated by the Time of Sale Prospectus.
(h)
If required by Rule 430B(h) under the Act, to prepare a form of prospectus in a form approved by the Representatives and to file
such form of prospectus pursuant to Rule 424(b) under the Act not later than may be required by Rule 424(b) under the Act and to make
no further amendment or supplement to such form of prospectus that shall be reasonably objected to by the Representatives promptly after
reasonable notice thereof, unless the Company is advised by counsel that such amendment or supplement is required by law.
(i)
To make generally available to the Company’s security holders, as soon as practicable, an “earning statement”
(which need not be audited by independent public accountants) covering a 12-month period commencing after the effective date of the Registration
Statement and ending not later than 15 months thereafter, that shall comply in all material respects with and satisfy the provisions of
Section 11(a) of the Act and Rule 158 under the Act.
(j)
To use its best efforts to qualify the Offered Securities for offer and sale under the securities or blue sky laws of such jurisdictions
as the Representatives may designate and to pay (or cause to be paid), or reimburse (or cause to be reimbursed) the Underwriters and their
counsel for, reasonable filing fees and expenses in connection therewith (including the reasonable fees and disbursements of counsel to
the Underwriters and filing fees and expenses paid and incurred prior to the date hereof); provided, however, that the Company
shall not be required to qualify to do business as a foreign corporation or as a securities dealer, file a general consent to service
of process, file annual reports or comply with any other requirements deemed by the Company to be unduly burdensome.
(k) To
pay all expenses, fees and taxes (other than transfer taxes on sales by the respective Underwriters) in connection with the issuance
and delivery of the Offered Securities, including, without limitation, (i) the fees and expenses of the Company’s counsel and
independent accountants, (ii) the cost of preparing any certificates representing the Securities and the Depositary Receipts, (iii)
the costs and charges of any depositary, any transfer agent and any registrar, (iv) the cost of printing and delivery (electronic or
otherwise) to the Underwriters of copies of any Permitted Free Writing Prospectus (as defined in Section 6(a) hereof), (v) all
expenses incurred by the Company in connection with any “road show” presentation to potential investors, (vi) all
expenses and application fees related to the listing of the Securities on the New York Stock Exchange (the
“NYSE”), (vii) any fees associated with the filing of the Certificate of Designation with the Michigan Department
of Licensing and Regulatory Affairs, Bureau of Commercial Services and (viii) any costs and expenses associated with the reforming
of any contracts for any sale of the Offered Securities made by any Underwriter caused by a breach of the representations and
warranties contained in the third or fourth sentence of Section 5(a) hereof, except that the Company shall be required to pay the
fees and disbursements (other than fees and disbursements referred to in Section 4(j) hereof) of Pillsbury, counsel to the
Underwriters, only in the events provided in Section 4(l) hereof, the Underwriters hereby agreeing to pay such fees and
disbursements in any other event, and that, except as provided in Section 4(l) hereof, the Company shall not be responsible for any
out-of-pocket expenses of the Underwriters in connection with their services hereunder.
(l)
If the Underwriters shall not take up and pay for the Securities (i) due to the failure of the Company to comply with any of the
conditions specified in Section 3 hereof, to pay the reasonable fees and disbursements of Pillsbury, counsel to the Underwriters, and
to reimburse the Underwriters for their other reasonable out-of-pocket expenses not to exceed a total of $10,000, incurred in connection
with the financing contemplated by this Agreement, such amounts including all amounts incurred in connection with any roadshow, provided
that such amounts are documented in writing to the Company, or (ii) due to termination in accordance with the provisions of Section 9
hereof prior to the Time of Purchase, to pay the reasonable fees and disbursements of Pillsbury, counsel to the Underwriters.
(m)
Prior to the termination of the offering of the Offered Securities, to not amend or supplement the Registration Statement, Time
of Sale Prospectus or Prospectus (including the Basic Prospectus) unless the Company has furnished the Representatives and counsel to
the Underwriters with a copy for their review and comment a reasonable time prior to filing and has reasonably considered any comments
of the Representatives, and, unless the Company is advised by counsel that such amendment or supplement is required by law, not to make
any such amendment or supplement to which such counsel shall reasonably object on legal grounds in writing after consultation with the
Representatives.
(n)
To furnish the Representatives, upon request, with copies of all documents filed with the Commission pursuant to Section 13, 14
or 15(d) of the Exchange Act subsequent to the time the Registration Statement becomes effective and prior to the termination of the offering
of the Offered Securities.
(o)
So long as may be required by law for distribution of the Offered Securities by the Underwriters or by any dealers that participate
in the distribution thereof, to comply with all requirements under the Exchange Act relating to the timely filing with the Commission
of its reports pursuant to Section 13 or 15(d) of the Exchange Act and of its proxy statements pursuant to Section 14 of the Exchange
Act.
(p)
Without the prior written consent of the Representatives, not to offer, pledge, sell, contract to sell, sell any option or contract
to purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase, lend or otherwise transfer or dispose
of, directly or indirectly, any preferred stock, depositary shares or any of the Company’s other securities, including any backup
undertaking of such preferred stock, depositary shares or other securities, in each case that are substantially similar to the Preferred
Stock or the Securities or any securities convertible into or exercisable or exchangeable for the Preferred Stock or the Securities or
such substantially similar securities of the Company (except for the Securities) for a period from the date hereof and continuing for
and including a period of 30 days.
(q)
To not take, directly or indirectly, any action designed to, or that has constituted or that might reasonably be expected to, cause
or result in, under the Exchange Act or otherwise, stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Offered Securities.
(r)
To cause the proceeds of the issuance and sale of the Offered Securities to be applied for the purposes described in the Time of
Sale Prospectus and the Prospectus.
(s)
To obtain the approval of DTC for “book-entry” transfer of the Securities, and to comply in all material respects with
all of its agreements set forth in the representation letter or letters of the Company to DTC relating to the approval of the Securities
by DTC for “book-entry” transfer.
(t)
To use its reasonable best efforts to effect the listing of the Securities on the NYSE no later than the 30th day following the
Time of Purchase.
(u)
To, prior to the Time of Purchase, deposit the Preferred Shares with the Depositary in accordance with the provisions of the Deposit
Agreement and otherwise comply with the Deposit Agreement so that the Securities will be issued by the Depositary against receipt of such
Preferred Shares and delivered to the Underwriters against payment therefor at the Time of Purchase.
(v)
To take all reasonable action necessary to enable S&P, Moody’s and Fitch to provide their respective credit ratings of
the Securities.
(w)
That any Underwriter may distribute to investors a free writing prospectus (as defined in Rule 405 under the Act) that contains
the final terms of the Offered Securities in the form set forth in Annex A to Schedule III hereto (the “Final Term
Sheet”), and to file such free writing prospectus in accordance with Rule 433(d) under the Act.
(x)
If the third anniversary of the initial effective date of the Registration Statement occurs before all of the Securities have been
sold by the Underwriters, prior to such third anniversary, to file a new shelf registration statement and to take any other action necessary
to permit the public offering of the Securities to continue without interruption; references in this Section 4(x) to the Registration
Statement shall include such new registration statement declared effective by the Commission or otherwise deemed to have become effective
upon filing.
(y)
If, at any time when Securities remain unsold by the Underwriters, the Company receives from the Commission a notice pursuant
to Rule 401(g)(2) under the Act or otherwise ceases to be eligible to use the automatic shelf registration statement form, to (i) promptly
notify the Representatives thereof, (ii) promptly file a new registration statement or post-effective amendment on the proper form relating
to the Securities, in a form reasonably satisfactory to the Representatives, (iii) use its reasonable best efforts to cause such registration
statement or post-effective amendment to be declared effective and (iv) promptly notify the Representatives of such effectiveness.
5.
Representations and Warranties of the Company. The Company represents and warrants to, and agrees with, each of the Underwriters
as of the Time of Sale and the Time of Purchase as follows.
(a) The
Company meets the requirements for the use of Form S-3 under the Act; the Registration Statement has been declared effective by the
Commission under the Act, meets the requirements set forth in paragraph (a)(1)(ix) or (a)(1)(x) of Rule 415 under the Act and
complies in all other respects with Rule 415 under the Act; a true and correct copy of the Registration Statement as amended to the
date hereof has been made available to each of the Representatives and to the Representatives for each of the other Underwriters;
any filing of the Preliminary Prospectus pursuant to Rule 424 under the Act has been made, and any filing of the Prospectus and any
supplements thereto required pursuant to Rule 424 under the Act will be made in the manner and within the time period required by
Rule 424 under the Act; no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued
under the Act and no proceedings for such purposes have been instituted or, to the knowledge of the Company, threatened or are
pending before the Commission, and any request on the part of the Commission for additional information has been complied with by
the Company; and no order preventing or suspending the use of any Issuer Free Writing Prospectus has been issued by the Commission.
(1) At the respective times that the Registration Statement and each amendment thereto became effective and at the Time of Sale
(which the Representatives have informed the Company is a time that is the earlier of (x) the date on which the Prospectus was first
used and (y) the date and time of the first contract of sale of the Offered Securities) (the “Applicable Effective
Time”), the Registration Statement and the Basic Prospectus complied, (2) at the Time of Sale the Time of Sale Prospectus
complied, and (3) on its issue date the Prospectus will comply, in each case in all material respects with the applicable provisions
of the Act and the related rules and regulations of the Commission. (A) At the respective times that the Registration Statement and
each amendment thereto became effective and at the Applicable Effective Time, the Registration Statement did not contain any untrue
statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements
therein not misleading, (B) the Basic Prospectus, as of its issue date, did not include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading, (C) the Time of Sale Prospectus, as of the Time of Sale, does not include any untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and (D) the Prospectus, on its issue date and, as amended or supplemented, if
applicable, as of the Time of Purchase, will not include any untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading,
except in each case that the Company makes no representation or warranty to any Underwriter with respect to any statements or
omissions made therein in reliance upon and in conformity with information furnished in writing to the Company through the
Representatives on behalf of any Underwriter expressly for use therein (as set forth in Section 7(b) hereof). Each document listed
in Schedule III hereto, as of its issue date and at all subsequent times through the completion of the public offer and sale
of the Offered Securities or until any earlier date that the Company notified or notifies the Representatives, did not, does not and
will not include any information that conflicted, conflicts or will conflict with the information contained in the Registration
Statement, the Time of Sale Prospectus or the Prospectus.
(b)
The documents incorporated by reference in the Registration Statement, the Basic Prospectus, the Time of Sale Prospectus and the
Prospectus, when they were filed with the Commission (or, if an amendment with respect to any such document was filed, when such amendment
was filed with the Commission), conformed in all material respects to the requirements of the Exchange Act and the rules and regulations
of the Commission promulgated thereunder, and any further documents so filed and incorporated by reference will, when they are filed with
the Commission, conform in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission
promulgated thereunder; and none of such documents, when it was filed (or, if an amendment with respect to any such document was filed,
when such amendment was filed), contained an untrue statement of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; and
no such further document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact
required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they are made,
not misleading. No such documents were filed with the Commission since the Commission’s close of business on the business day immediately
prior to the date hereof other than as expressly set forth in the Prospectus. The Company has given the Representatives notice of any
filings made within 48 hours prior to the Time of Sale pursuant to the Exchange Act and the rules and regulations of the Commission promulgated
thereunder.
(c)
The Company has been duly organized and is validly existing as a corporation in good standing under the laws of the State of Michigan
and has all requisite authority to own or lease its properties and conduct its business as described in the Time of Sale Prospectus and
the Prospectus and to consummate the transactions contemplated hereby, and is duly qualified to transact business and is in good standing
in each jurisdiction in which the conduct of its business as described in the Time of Sale Prospectus and the Prospectus or its ownership
or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would
not have a material adverse effect on the Company and its subsidiaries taken as a whole (a “Material Adverse Effect”).
(d) Each
significant subsidiary (as defined in Rule 405 under the Act, and herein called a “Significant Subsidiary”) of
the Company has been duly organized and is validly existing and in good standing under the laws of the jurisdiction of its
organization, has all requisite authority to own or lease its properties and conduct its business as described in the Time of Sale
Prospectus and the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the
conduct of its business as described in the Time of Sale Prospectus and the Prospectus or its ownership or leasing of property
requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a
Material Adverse Effect.
(e)
The Preferred Shares have been duly authorized by the Company and, when issued and delivered by the Company pursuant to this Agreement
and the Deposit Agreement against payment of the consideration set forth herein and therein, will be validly issued, fully paid and non-assessable.
The Securities, and the deposit of the Preferred Shares in accordance with the provisions of the Deposit Agreement, have been duly authorized
by the Company. When the Securities have been issued and delivered by the Company pursuant to this Agreement against payment of the consideration
set forth herein and the Depositary Receipts have been duly executed and delivered by the Depositary in accordance with this Agreement
and the Deposit Agreement, such Securities will be duly and validly issued, and the holders thereof will be entitled to the benefits provided
in the Deposit Agreement and the Depositary Receipts. The Certificate of Designation sets forth the rights, preferences and priorities
of the Preferred Shares, and the holders of the Preferred Shares will have the rights set forth in the Certificate of Designation upon
filing with the Michigan Department of Licensing and Regulatory Affairs, Bureau of Commercial Services. The Securities, the Preferred
Shares, the Deposit Agreement, the Depositary Receipts, the Certificate of Designation, the Restated Articles of Incorporation and the
Company’s Amended and Restated Bylaws will conform in all material respects to the descriptions thereof in the Time of Sale Prospectus
and the Prospectus and such descriptions conform in all material respects to the rights set forth in the respective instruments and agreements
defining the same. The Company knows of no reason that any holder of the Securities would be subject to personal liability solely by reason
of being such a holder. The issuance of the Preferred Shares and the Securities is not subject to any preemptive or other similar rights
of any securityholder of the Company or any of its subsidiaries.
(f)
The Deposit Agreement has been duly authorized by the Company. At the Time of Purchase, the Deposit Agreement will have been duly
executed and delivered by the Company and will constitute a valid and binding obligation of the Company, enforceable against the Company
in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws affecting creditors’ rights generally or by general principles of equity (regardless
of whether enforcement is considered in a proceeding at law or in equity). Upon (i) the issuance of any Depositary Receipts by the Depositary
pursuant to the Deposit Agreement and payment of the consideration set forth in this Agreement, (ii) the filing of the Certificate of
Designation with the Michigan Department of Licensing and Regulatory Affairs, Bureau of Commercial Services and (iii) the deposit of the
Preferred Shares with the Depositary in accordance with the provisions of the Deposit Agreement, such Depositary Receipts will be duly
and validly issued under the Deposit Agreement and this Agreement, and the persons and entities in whose names such Depositary Receipts
are registered will be entitled to the rights provided therein and in the Deposit Agreement.
(g)
This Agreement has been duly authorized, executed and delivered by the Company, and the Company has full corporate power and authority
to enter into this Agreement. The Certificate of Designation has been duly authorized by the Company.
(h)
Except for the outstanding shares of preferred stock of Consumers Energy Company, all of the outstanding capital stock of each
of Consumers Energy Company and CMS Enterprises Company is owned directly or indirectly by the Company, free and clear of any security
interest, claim, lien or other encumbrance (except as disclosed in the Time of Sale Prospectus) or preemptive rights, and there are no
outstanding rights (including, without limitation, preemptive rights), warrants or options to acquire, or instruments convertible into
or exchangeable for, any shares of capital stock or other equity interest in any of Consumers Energy Company and CMS Enterprises Company
or any contract, commitment, agreement, understanding or arrangement of any kind relating to the issuance of any such capital stock, any
such convertible or exchangeable securities or any such rights, warrants or options.
(i)
Each of the Company and Consumers Energy Company has all necessary consents, authorizations, approvals, orders, certificates and
permits of and from, and has made all declarations and filings with, all federal, state, local and other governmental authorities, all
self-regulatory organizations and all courts and other tribunals, to own, lease, license and use its properties and assets and to conduct
its business in the manner described in the Time of Sale Prospectus and the Prospectus, except to the extent that the failure to obtain,
declare or file the foregoing would not have a Material Adverse Effect.
(j)
No order, license, consent, authorization or approval of, exemption by, giving of notice to, or registration with, any federal,
state, local or other governmental department, commission, board, bureau, agency or instrumentality, and no filing, recording, publication
or registration in any public office or any other place, was or is now required to be obtained by the Company to authorize its execution
or delivery of, or the performance of its obligations under, this Agreement, the Securities, the Deposit Agreement or the Certificate
of Designation or the issuance or deposit of the Preferred Shares with the Depositary against the issuance of the Securities in accordance
with the terms of the Certificate of Designation and the Deposit Agreement, except such as have been obtained or may be required under
state securities or blue sky laws or as referred to in the Time of Sale Prospectus and except the filing of the Certificate of Designation
with the Michigan Department of Licensing and Regulatory Affairs, Bureau of Commercial Services.
(k)
None of the issuance or sale of the Securities, the execution or delivery by the Company of this Agreement or the Deposit Agreement,
the execution and filing by the Company of the Certificate of Designation, the performance by the Company of its obligations under this
Agreement, the Securities, the Deposit Agreement or the Certificate of Designation and the consummation of the transactions contemplated
herein and therein, including the issuance and deposit of the Preferred Shares with the Depositary against the issuance of the Securities
in accordance with the terms of the Certificate of Designation and the Deposit Agreement, did or will conflict with, result in a breach
of any of the terms or provisions of, or constitute a default or require the consent of any party under, the Restated Articles of Incorporation
or the Company’s Amended and Restated Bylaws, any material agreement or instrument to which it is a party, any existing applicable
law, rule or regulation or any judgment, order or decree of any government, governmental instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any of its properties or assets, or did or will result in the creation or imposition of any lien
on the Company’s properties or assets.
(l)
The Company has an authorized capitalization as set forth in the Time of Sale Prospectus and all of the issued shares of capital
stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable.
(m)
Except as disclosed in the Time of Sale Prospectus, there is no action, suit, proceeding, inquiry or investigation (at law or in
equity or otherwise) pending or, to the knowledge of the Company, threatened against the Company or any Significant Subsidiary of the
Company before or brought by any court or governmental authority that (i) questions the validity, enforceability or performance of this
Agreement, the Deposit Agreement, the Certificate of Designation or the Offered Securities or (ii) would reasonably be expected to have
a Material Adverse Effect or materially adversely affect the ability of the Company to perform its obligations hereunder or thereunder
or the consummation of the transactions contemplated hereby or thereby.
(n)
There has not been any material and adverse change, or any development involving a prospective material and adverse change, in
or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its Significant Subsidiaries,
taken as a whole, from that set forth or incorporated by reference in the Time of Sale Prospectus (other than changes referred to in or
contemplated by the Time of Sale Prospectus).
(o)
Except as set forth in the Time of Sale Prospectus, no event or condition exists that constitutes, or with the giving of notice
or lapse of time or both would constitute, a default or any breach or failure to perform by the Company or any of its Significant Subsidiaries,
taken as a whole, in any material respect under any indenture, mortgage, loan agreement, lease or other material agreement or instrument
to which the Company or any of its Significant Subsidiaries is a party or by which it or any of its respective properties may be bound.
(p)
The Company, after giving effect to the offering and sale of the Offered Securities, will not be an “investment company”
within the meaning of the Investment Company Act of 1940, as amended.
(q)
The Company’s chief executive officer and chief financial officer are responsible for establishing and maintaining the Company’s
disclosure controls and procedures. The Company’s management, under the direction of the Company’s principal executive and
financial officers, has evaluated the effectiveness of the Company’s disclosure controls and procedures as of a date within 90 days
of the filing of the Company’s most recent annual report on Form 10-K. Based on such evaluation, the Company’s chief executive
officer and chief financial officer have concluded that the Company’s disclosure controls and procedures are effective to ensure
that material information was presented to them and properly disclosed. There have been no significant changes in the Company’s
internal controls or in other factors that could significantly affect internal controls subsequent to such evaluation.
(r) The
Company maintains a system of internal accounting controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific authorizations, (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain asset
accountability, (iii) access to assets is permitted only in accordance with management’s general or specific authorization,
(iv) the recorded accountability for assets is compared with the existing assets at reasonable intervals and appropriate action is
taken with respect to any differences and (v) interactive data in eXtensible Business Reporting Language included or incorporated by
reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus is prepared in accordance with the
Commission’s rules applicable thereto. The Company is not aware of any material weakness in its internal controls over
financial reporting.
(s)
Except as described in the Time of Sale Prospectus and the Prospectus and except as would not, singly or in the aggregate, result
in a Material Adverse Effect, (A) neither the Company nor any of its subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of common law or any judicial or administrative interpretation thereof,
including any judicial or administrative order, consent, decree or judgment, relating to pollution or protection of human health, the
environment (including, without limitation, ambient air, surface water, groundwater, land surface or subsurface strata) or wildlife, including,
without limitation, laws and regulations relating to the release or threatened release of chemicals, pollutants, contaminants, wastes,
toxic substances, hazardous substances, petroleum or petroleum products, asbestos-containing materials or mold (collectively, “Hazardous
Materials”) or to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of Hazardous
Materials (collectively, “Environmental Laws”), (B) the Company and its subsidiaries have all permits, authorizations
and approvals required under any applicable Environmental Laws and are each in compliance with their requirements, (C) there are no pending
or, to the knowledge of the Company, threatened administrative, regulatory or judicial actions, suits, demands, demand letters, claims,
liens, notices of noncompliance or violation, investigations or proceedings relating to any Environmental Law against the Company or any
of its subsidiaries and (D) there are no events or circumstances that would reasonably be expected to form the basis of an order for clean-up
or remediation, or an action, suit or proceeding by any private party or governmental body or agency, against or affecting the Company
or any of its subsidiaries relating to Hazardous Materials or any Environmental Laws.
(t) The
financial statements and the related notes thereto of the Company and its consolidated subsidiaries incorporated by reference in the
Registration Statement, the Time of Sale Prospectus and the Prospectus comply in all material respects with the applicable
requirements of the Act and the Exchange Act and the rules and regulations of the Commission thereunder, as applicable, and present
fairly, in all material respects, the financial position of the Company and its consolidated subsidiaries as of the dates indicated
and the results of their operations and the changes in their cash flows for the periods specified; such financial statements have
been prepared in conformity with generally accepted accounting principles applied on a basis substantially consistent throughout the
periods covered thereby, except where an exception thereto has been adequately described therein, and the supporting schedules
incorporated by reference in the Registration Statement present fairly, in all material respects, the information required to be
stated therein; the other financial information incorporated by reference in the Registration Statement, the Time of Sale Prospectus
and the Prospectus has been derived from the accounting records of the Company and its consolidated subsidiaries, or, in the case of
data not derivable from the accounting records of the Company and its consolidated subsidiaries, other data in the possession of the
Company and its consolidated subsidiaries, and presents fairly the information shown thereby; and any pro forma financial
information and the related notes thereto incorporated by reference in the Registration Statement, the Time of Sale Prospectus and
the Prospectus have been prepared in accordance with the applicable requirements of the Act and the Exchange Act, as applicable, and
the assumptions underlying any such pro forma financial information are reasonable and are set forth in the Registration
Statement, the Time of Sale Prospectus and the Prospectus. The interactive data in eXtensible Business Reporting Language included
or incorporated by reference in the Registration Statement, the Time of Sale Prospectus and the Prospectus conform in all material
respects to the requirements of the Commission’s rules applicable thereto.
(u)
At the latest of the time (i) of filing the Original Registration Statement, (ii) of the most recent amendment thereto for the
purposes of complying with Section 10(a)(3) of the Act (whether such amendment was by post-effective amendment, incorporated report filed
pursuant to Section 13 or 15(d) of the Exchange Act or form of prospectus) and (iii) the Company or any person acting on its behalf (within
the meaning, for this clause only, of Rule 163(c) under the Act) made any offer relating to the Offered Securities in reliance on the
exemption provided by Rule 163 under the Act, and at the date hereof, the Company was and is a well-known seasoned issuer (as defined
in Rule 405 under the Act), including not having been and not being an ineligible issuer (as defined in Rule 405 under the Act). At the
date hereof, the time of filing of the Original Registration Statement and the earliest time thereafter that the Company or another offering
participant made a bona fide offer (within the meaning of Rule 164(h)(2) under the Act) of the Offered Securities, the Company was not
and is not an ineligible issuer (as defined in Rule 405 under the Act), without taking into account any determination by the Commission
pursuant to Rule 405 under the Act that it is not necessary that the Company be considered an ineligible issuer (as defined in Rule 405
under the Act).
(v)
The Registration Statement is an automatic shelf registration statement (as defined for purposes of this Section 5(v) in Rule 405
under the Act) and initially became effective not earlier than the date that is three years prior to the Time of Purchase. The Company
has not received from the Commission any notice pursuant to Rule 401(g)(2) under the Act objecting to the use of the automatic shelf registration
statement form, and the Offered Securities have been and remain eligible for registration by the Company on an automatic shelf registration
statement form.
(w) The
Company has implemented and maintains in effect policies, procedures and/or practices designed to ensure, in its reasonable
judgment, compliance in all material respects by the Company, its subsidiaries and their respective directors, officers, employees
and agents with (i) all laws, rules and regulations of any jurisdiction applicable to the Company or any of its subsidiaries from
time to time concerning or relating to bribery or corruption (“Anti-Corruption Laws”) and (ii) all applicable
economic or financial sanctions or trade embargoes imposed, administered or enforced from time to time by (A) the U.S. government,
including those administered by the Office of Foreign Assets Control of the U.S. Department of Treasury (“OFAC”)
or the U.S. Department of State, or (B) the United Nations Security Council, the European Union, any European Union member state or
Her Majesty’s Treasury of the United Kingdom (collectively, “Sanctions”). The Company, its subsidiaries and
their respective officers and employees, and, to the knowledge of the Company, its directors and agents, are in compliance with
Anti-Corruption Laws and applicable Sanctions in all material respects. None of the Company, any of its subsidiaries or, to the
knowledge of the Company or any such subsidiary, any of their respective directors, officers or employees, is (1) a person or entity
listed in any Sanctions-related list of designated persons or entities maintained by OFAC, the U.S. Department of State, the United
Nations Security Council, the European Union or any European Union member state, (2) a person or entity operating, organized or
resident in a country, region or territory that is itself the subject or target of any Sanctions (at the time of this Agreement,
Crimea, Cuba, Iran, North Korea, Sudan and Syria) (each, a “Sanctioned Country”) or (3) a person or entity owned
or controlled by any such person or persons or entity or entities described in the foregoing clause (1) or clause (2) (each, a
“Sanctioned Person”). No transaction contemplated by this Agreement will violate any Anti-Corruption Law or
applicable Sanctions.
(x)
The Company will maintain in effect and enforce policies, procedures and/or practices designed to ensure, in its reasonable judgment,
compliance in all material respects by the Company, its subsidiaries and their respective directors, officers, employees and agents with
Anti-Corruption Laws and applicable Sanctions.
(y)
The Company shall not directly or knowingly indirectly use, and shall procure that its subsidiaries and its or their respective
directors, officers, employees and agents shall not directly or knowingly indirectly use, the proceeds of the issuance and sale of the
Offered Securities (i) in furtherance of an offer, payment, promise to pay or authorization of the payment or giving of money, or anything
else of value, to any person or entity in violation of any Anti-Corruption Laws, (ii) for the purpose of funding, financing or facilitating
any activities, business or transaction of or with any Sanctioned Person, or in any Sanctioned Country, to the extent such activities,
businesses or transaction would be prohibited by Sanctions, or (iii) in any manner that would result in the violation of any Sanctions
applicable to any party hereto. Notwithstanding the foregoing, the Company’s and its subsidiaries’ provision of utility services
in the ordinary course of business in accordance with applicable law, including Anti-Corruption Laws and applicable Sanctions, shall not
constitute a violation of this Section 5(y).
(z) Except
as disclosed in the Registration Statement, the Time of Sale Prospectus and the Prospectus, there has been no security breach or
other compromise of or relating to any of the Company’s or its subsidiaries’ information technology and computer
systems, networks, hardware, software, data (including the data of their respective customers, employees, suppliers and vendors and
any third party data maintained by or on behalf of them), equipment or technology (collectively, “IT Systems and
Data”), except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.
The Company and its subsidiaries have not been notified of, and have no knowledge of any event or condition that would reasonably be
expected to result in, any security breach or other compromise to their IT Systems and Data, except as would not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect. The Company and its subsidiaries are presently in
compliance with all applicable laws and statutes, all judgments, orders, rules and regulations of any court or arbitrator or
governmental or regulatory authority, all internal policies and all contractual obligations relating to the privacy and security of
IT Systems and Data and to the protection of such IT Systems and Data from unauthorized use, access, misappropriation or
modification, except as would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The
Company and its subsidiaries have implemented backup and disaster recovery technology consistent with industry standards and
practices. The Company and its subsidiaries have policies and procedures in place designed to ensure the integrity and security of
the IT Systems and Data and comply with such policies and procedures in all material respects.
6.
Free Writing Prospectuses.
(a)
The Company represents, warrants, covenants and agrees that, without the prior consent of the Representatives, it has not made
and will not make any offer relating to the Offered Securities that would constitute a free writing prospectus (as defined in Rule 405
under the Act), other than the Final Term Sheet. Each Underwriter represents, warrants, covenants and agrees, severally and not jointly,
that, without the prior consent of the Company and the Representatives, it has not made and will not make any offer relating to the Offered
Securities that would constitute an Issuer Free Writing Prospectus or other free writing prospectus (as defined in Rule 405 under the
Act) that would be required to be filed by the Company with the Commission or retained by the Company under Rule 433 under the Act, other
than the Final Term Sheet; provided, that the prior consent of the parties hereto shall be deemed to have been given in respect of any
free writing prospectus (as defined in Rule 405 under the Act) included in Schedule III hereto. Each Underwriter further covenants
and agrees, severally and not jointly, that it will not (and will not permit anyone on its behalf to) use or refer to any free writing
prospectus (as defined in Rule 405 under the Act) used or referenced by such Underwriter in a manner reasonably designed to lead to its
broad unrestricted dissemination; provided, that such covenant and agreement shall not apply to any such free writing prospectus identified
in Schedule III hereto or any such free writing prospectus prepared, authorized or approved by the Company for broad unrestricted
dissemination. Any such free writing prospectus, the use of which has been consented to by the Company and the Representatives (including
those listed on Schedule III hereto), is hereinafter referred to as a “Permitted Free Writing Prospectus”. For
the purposes of clarity, nothing in this Section 6(a) shall restrict the Company from making any filings required in order to comply with
its reporting obligations under the Exchange Act or the rules and regulations of the Commission promulgated thereunder.
(b) The
Company represents and warrants that it has treated or covenants and agrees that it will treat each Permitted Free Writing Prospectus
as an issuer free writing prospectus (as defined in Rule 433 under the Act) and has complied and will comply with the requirements of
Rule 164 and Rule 433 under the Act applicable to any Permitted Free Writing Prospectus, including, without limitation, timely Commission
filing where required, legending and record keeping.
(c)
The Company covenants and agrees that if at any time following issuance of an Issuer Free Writing Prospectus any event occurred
or occurs as a result of which such Issuer Free Writing Prospectus would (i) conflict with the information in the Registration Statement,
the Time of Sale Prospectus or the Prospectus or (ii) when read together with the other information that is part of the Time of Sale
Prospectus, include an untrue statement of a material fact or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances then prevailing, not misleading, the Company will give prompt notice thereof to the Representatives
and, if requested by the Representatives, will prepare and furnish without charge to each Underwriter an Issuer Free Writing Prospectus
or other document that will correct such conflict, statement or omission.
7.
Indemnification.
(a)
The Company agrees, to the extent permitted by law, to indemnify and hold harmless each of the Underwriters, and each person, if
any, who controls any such Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, against any and
all losses, claims, damages or liabilities, joint or several, to which they or any of them may become subject under the Act or otherwise,
and to reimburse the Underwriters and such controlling person or persons, if any, for any legal or other expenses incurred by them in
connection with defending any action, suit or proceeding (including governmental investigations) as provided in Section 7(c) hereof, insofar
as such losses, claims, damages, liabilities or actions, suits or proceedings (including governmental investigations) arise out of or
are based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement, the Basic
Prospectus (if used prior to the date of the Prospectus), the Time of Sale Prospectus or the Prospectus, or, if the Prospectus shall be
amended or supplemented, in the Prospectus as so amended or supplemented (if such Prospectus or such Prospectus as amended or supplemented
is used after the period of time referred to in Section 4(e) hereof, it shall contain or be used with such amendments or supplements as
the Company deems necessary to comply with Section 10(a) of the Act), the information contained in the Final Term Sheet, any Issuer Free
Writing Prospectus or any issuer information (within the meaning of Rule 433 under the Act) filed or required to be filed pursuant to
Rule 433(d) under the Act or arise out of or are based upon any omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages, liabilities
or actions, suits or proceedings (including governmental investigations) arise out of or are based upon any such untrue statement or alleged
untrue statement or omission or alleged omission that was made in such Registration Statement, Basic Prospectus, Time of Sale Prospectus
or Prospectus, or in the Prospectus as so amended or supplemented, any Issuer Free Writing Prospectus or any issuer information (within
the meaning of Rule 433 under the Act) filed or required to be filed pursuant to Rule 433(d) under the Act in reliance upon and in conformity
with information furnished in writing to the Company through the Representatives on behalf of any Underwriter expressly for use therein.
The Company’s indemnity
agreement contained in this Section 7(a), and the covenants, representations and warranties of the Company contained in this Agreement,
shall remain in full force and effect regardless of any investigation made by or on behalf of any person, and shall survive the delivery
of and payment for the Offered Securities hereunder, and the indemnity agreement contained in this Section 7 shall survive any termination
of this Agreement. The liabilities of the Company in this Section 7(a) are in addition to any other liabilities of the Company under this
Agreement or otherwise.
(b)
Each Underwriter agrees, severally and not jointly, to the extent permitted by law, to indemnify, hold harmless and reimburse
the Company, its directors and such of its officers as shall have signed the Registration Statement and each person, if any, who controls
the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, to the same extent and upon the same terms
as the indemnity agreement of the Company set forth in Section 7(a) hereof, but only with respect to alleged untrue statements or omissions
made in the Registration Statement, the Basic Prospectus, the Time of Sale Prospectus, the Prospectus, as amended or supplemented (if
applicable), or any Issuer Free Writing Prospectus in reliance upon and in conformity with information furnished in writing to the Company
through the Representatives on behalf of such Underwriter expressly for use therein.
The indemnity agreement on the
part of each Underwriter contained in this Section 7(b) and the covenants, representations and warranties of such Underwriter contained
in this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the Company or any other
person, and shall survive the delivery of and payment for the Offered Securities hereunder, and the indemnity agreement contained in this
Section 7 shall survive any termination of this Agreement. The liabilities of each Underwriter in this Section 7(b) are in addition to
any other liabilities of such Underwriter under this Agreement or otherwise. The Company acknowledges that the third paragraph, the first
and second sentences of the sixth paragraph, the seventh paragraph, the eighth paragraph, the first sentence of the twelfth paragraph,
and the thirteenth paragraph under the heading “Underwriting” in the Prospectus constitute the only information furnished
in writing by or on behalf of the several Underwriters for inclusion in the Registration Statement, the Basic Prospectus, the Time of
Sale Prospectus, the Prospectus and any Issuer Free Writing Prospectus, as the case may be.
(c)
If a claim is made or an action, suit or proceeding (including governmental investigation) is commenced or threatened against
any person as to which indemnity may be sought under Section 7(a) hereof or Section 7(b) hereof, such person (the “Indemnified
Person”) shall notify the person against whom such indemnity may be sought (the “Indemnifying Person”) promptly
after any assertion of such claim, promptly after any threat is made to institute an action, suit or proceeding or, if such an action,
suit or proceeding is commenced against such Indemnified Person, promptly after such Indemnified Person shall have been served with a
summons or other first legal process, giving information as to the nature and basis of the claim. Failure to so notify the Indemnifying
Person shall not, however, relieve the Indemnifying Person from any liability that it may have on account of the indemnity under Section
7(a) hereof or Section 7(b) hereof if the Indemnifying Person has not been prejudiced in any material respect by such failure. Subject
to the immediately succeeding sentence, the Indemnifying Person shall assume the defense of any such litigation or proceeding, including
the employment of counsel and the payment of all expenses, with such counsel being designated, subject to the immediately succeeding
sentence, in writing by the Representatives in the case of parties indemnified pursuant to Section 7(b) hereof and by the Company in
the case of parties indemnified pursuant to Section 7(a) hereof. Any Indemnified Person shall have the right to participate in such litigation
or proceeding and to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person
unless (i) the Indemnifying Person and the Indemnified Person shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include (x) the Indemnifying Person and (y) the Indemnified Person
and, in the written opinion of counsel to such Indemnified Person, representation of both parties by the same counsel would be inappropriate
due to actual or likely conflicts of interest between them, in either of which cases the reasonable fees and expenses of counsel (including
disbursements) for such Indemnified Person shall be reimbursed by the Indemnifying Person to the Indemnified Person. If there is a conflict
as described in clause (ii) above, and the Indemnified Person(s) have participated in the litigation or proceeding utilizing separate
counsel whose fees and expenses have been reimbursed by the Indemnifying Person and the Indemnified Person(s), or any of them, are found
in a final judicial determination to be liable, such Indemnified Person(s) shall repay to the Indemnifying Person such fees and expenses
of such separate counsel as the Indemnifying Person shall have reimbursed. It is understood that the Indemnifying Person shall not, in
connection with any litigation or proceeding or related litigation or proceedings in the same jurisdiction as to which the Indemnified
Person(s) are entitled to such separate representation, be liable under this Agreement for the reasonable fees and out-of-pocket expenses
of more than one separate firm (together with not more than one appropriate local counsel) for all such Indemnified Persons. Subject
to the next paragraph, all such fees and expenses shall be reimbursed by payment to the Indemnified Person(s) of such reasonable fees
and expenses of counsel promptly after payment thereof by the Indemnified Person(s).
In furtherance of the requirement
above that fees and expenses of any separate counsel for the Indemnified Person(s) shall be reasonable, the Underwriters and the Company
agree that the Indemnifying Person’s obligations to pay such fees and expenses shall be conditioned upon the following:
(1) in
case separate counsel is proposed to be retained by the Indemnified Person(s) pursuant to clause (ii) of the preceding paragraph, the
Indemnified Person(s) shall in good faith fully consult with the Indemnifying Person in advance as to the selection of such counsel;
(2) reimbursable
fees and expenses of such separate counsel shall be detailed and supported in a manner reasonably acceptable to the Indemnifying Person
(but nothing herein shall be deemed to require the furnishing to the Indemnifying Person of any information, including, without limitation,
computer print-outs of lawyers’ daily time entries, to the extent that, in the judgment of such counsel, furnishing such information
might reasonably be expected to result in a waiver of any attorney-client privilege); and
(3) the
Company and the Representatives shall cooperate in monitoring and controlling the fees and expenses of separate counsel for Indemnified
Person(s) for which the Indemnifying Person is liable hereunder, and the Indemnified Person(s) shall use every reasonable effort to cause
such separate counsel to minimize the duplication of activities as between themselves and counsel to the Indemnifying Person.
The Indemnifying Person shall
not be liable for any settlement of any litigation or proceeding effected without the written consent of the Indemnifying Person, but,
if settled with such consent or if there be a final judgment for the plaintiff, the Indemnifying Person agrees, subject to the provisions
of this Section 7, to indemnify the Indemnified Person from and against any loss, damage, liability or expense by reason of such settlement
or judgment. The Indemnifying Person shall not, without the prior written consent of the Indemnified Person(s), effect any settlement
of any pending or threatened litigation, proceeding or claim in respect of which indemnity has been properly sought by the Indemnified
Person(s) hereunder, unless such settlement includes an unconditional release by the claimant of all Indemnified Persons from all liability
with respect to claims that are the subject matter of such litigation, proceeding or claim and does not include a statement as to or
an admission of fault, culpability or a failure to act, by or on behalf of any Indemnified Person.
(d)
If the indemnification provided for above in this Section 7 is unavailable to or insufficient to hold harmless an Indemnified
Person under such Section 7 in respect of any losses, claims, damages or liabilities (or actions, suits or proceedings (including governmental
investigations) in respect thereof) referred to therein, then each Indemnifying Person under this Section 7 shall contribute to the amount
paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities (or actions in respect thereof)
in such proportion as is appropriate to reflect the relative benefits received by the Indemnifying Person on the one hand and the Indemnified
Person on the other from the offering of the Offered Securities. If, however, the allocation provided by the immediately preceding sentence
is not permitted by applicable law, then each Indemnifying Person shall contribute to such amount paid or payable by such Indemnified
Person in such proportion as is appropriate to reflect not only such relative benefits but also the relative fault of each Indemnifying
Person, if any, on the one hand and the Indemnified Person on the other in connection with the statements or omissions that resulted
in such losses, claims, damages or liabilities (or actions, suits or proceedings (including governmental investigations) in respect thereof),
as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters
on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received
by the Company and the total discounts or commissions received by the Underwriters, in each case as set forth in the table on the cover
page of the Prospectus, bear to the aggregate public offering price of the Offered Securities. The relative fault shall be determined
by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company on the one hand or the Underwriters on the other and the parties’
relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account
of the equitable considerations referred to above in this Section 7. The amount paid or payable by an Indemnified Person as a result
of the losses, claims, damages or liabilities (or actions, suits or proceedings (including governmental proceedings) in respect thereof)
referred to above in this Section 7 shall be deemed to include any legal or other expenses reasonably incurred by such Indemnified Person
in connection with investigating or defending any such actions, suits or proceedings (including governmental proceedings) or claims,
provided that the provisions of this Section 7 have been complied with (in all material respects) in respect of any separate counsel
for such Indemnified Person. Notwithstanding the provisions of this Section 7, no Underwriter shall be required to contribute any amount
in excess of the purchase discount or commission applicable to the Offered Securities purchased by such Underwriter hereunder. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Underwriters’ obligations in this Section 7 to contribute are several
in proportion to their respective underwriting obligations and not joint.
The agreement with respect to
contribution contained in this Section 7(d) shall remain in full force and effect regardless of any investigation made by or on behalf
of the Company or any Underwriter, and shall survive delivery of and payment for the Offered Securities hereunder and any termination
of this Agreement.
8.
Substitution of Underwriters. If any Underwriter under this Agreement shall fail or refuse (otherwise than for some reason
sufficient to justify, in accordance with the terms hereof, the termination of its obligations hereunder) to purchase the Securities that
it had agreed to purchase at the Time of Purchase, the Representatives shall immediately notify the Company and the Representatives and
the other Underwriters may, within 36 hours of the giving of such notice, determine to purchase, or to procure one or more other members
of the Financial Industry Regulatory Authority, Inc. (“FINRA”) (or, if not members of the FINRA, who are foreign banks,
dealers or institutions not registered under the Exchange Act and who agree in making sales to comply with the FINRA’s Conduct Rules),
satisfactory to the Company, to purchase, upon the terms herein set forth, the number of shares of Securities that the defaulting Underwriter
had agreed to purchase. If any non-defaulting Underwriter or Underwriters shall determine to exercise such right, the Representatives
shall give written notice to the Company of such determination within 36 hours after the Company shall have received notice of any such
default, and thereupon the Time of Purchase shall be postponed for such period, not exceeding three business days, as the Company shall
determine. If, in the event of such a default, the Representatives shall fail to give such notice, or shall within such 36-hour period
give written notice to the Company that no other Underwriter or Underwriters, or others, will exercise such right, then this Agreement
may be terminated by the Company, upon like notice given to the Representatives within a further period of 36 hours. If in such case the
Company shall not elect to terminate this Agreement, it shall have the right, irrespective of such default:
(a)
to require such non-defaulting Underwriters to purchase and pay for the respective numbers of shares of Securities that they had
severally agreed to purchase hereunder, as herein above provided, and, in addition, the number of shares of Securities that the defaulting
Underwriter shall have so failed to purchase up to a number of shares thereof equal to one-ninth (1/9) of the respective numbers of shares
of Securities that such non-defaulting Underwriters have otherwise agreed to purchase hereunder; and/or
(b)
to procure one or more other members of the FINRA (or, if not members of the FINRA, who are foreign banks, dealers or institutions
not registered under the Exchange Act and who agree in making sales to comply with the FINRA’s Conduct Rules) to purchase, upon
the terms herein set forth, the number of shares of Securities that such defaulting Underwriter had agreed to purchase, or that portion
thereof that the remaining Underwriters shall not be obligated to purchase pursuant to Section 8(a) hereof.
In the event the Company shall
exercise its rights under Section 8(a) hereof and/or Section 8(b) hereof, the Company shall give written notice thereof to the Representatives
within such further period of 36 hours, and thereupon the Time of Purchase shall be postponed for such period, not exceeding five business
days, as the Company shall determine. In the event the Company shall be entitled to but shall not elect to exercise its rights under Section
8(a) hereof and/or Section 8(b) hereof, the Company shall be deemed to have elected to terminate this Agreement.
Any action taken by the Company
under this Section 8 shall not relieve any defaulting Underwriter from liability in respect of any default of such Underwriter under this
Agreement. Termination by the Company under this Section 8 shall be without any liability on the part of the Company or any non-defaulting
Underwriter.
In the computation of any period
of 36 hours referred to in this Section 8, there shall be excluded a period of 24 hours in respect of each Saturday, Sunday or legal holiday
that would otherwise be included in such period of time.
9.
Effectiveness and Termination of Agreement. This Agreement shall become effective upon the execution and delivery of this
Agreement by the parties hereto.
This Agreement may be terminated
at any time prior to the Time of Purchase by the Representatives if, prior to such time, any of the following events shall have occurred:
(i) trading in the Company’s securities shall have been suspended by the Commission or the NYSE or trading in securities generally
on the NYSE shall have been suspended or limited or minimum prices shall have been established on such exchange; (ii) a banking moratorium
shall have been declared either by U.S. federal or New York State authorities; (iii) any material disruption of securities settlement
or clearance services; or (iv) any outbreak or escalation of hostilities, declaration by the United States of a national emergency or
war or other calamity, crisis or disruption in financial markets, the effect of which on the financial markets of the United States is
such as to impair, in the judgment of the Representatives, the marketability of the Offered Securities.
If the Representatives elect
to terminate this Agreement, as provided in this Section 9, the Representatives will promptly notify the Company and each other Underwriter
by telephone or facsimile, confirmed by letter. If this Agreement shall not be carried out by any Underwriter for any reason permitted
hereunder, or if the sale of the Securities to the Underwriters as herein contemplated shall not be carried out because the Company is
not able to comply with the terms hereof, the Company shall not be under any obligation under this Agreement except as provided in Section
4(l) hereof and shall not be liable to any Underwriter or to any member of any selling group for the loss of anticipated profits from
the transactions contemplated by this Agreement and the Underwriters shall be under no liability to the Company nor be under any liability
under this Agreement to one another.
Notwithstanding the foregoing,
the provisions of Section 4(j) hereof, Section 4(k) hereof, Section 4(l) hereof, Section 7 hereof and Section 8 hereof shall survive termination
of this Agreement.
10. Notices.
All notices hereunder shall, unless otherwise expressly provided, be in writing and be delivered at or mailed to the following
addresses or be sent by facsimile or other electronic means as follows: (i) if to the Underwriters or the Representatives, to the
Representatives at the address or number, as appropriate, designated in Schedule I hereto; and (ii) if to the Company, to CMS
Energy Corporation, One Energy Plaza, Jackson, Michigan 49201, Attention: Executive Vice President and Chief Financial Officer
(Facsimile 517-788-2186), or in any case to such other address as the person to be notified may have requested in writing. In
accordance with the requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)), the
Underwriters are required to obtain, verify and record information that identifies their respective clients, including the Company,
which information may include the name and address of their respective clients, as well as other information that will allow the
Underwriters to properly identify their respective clients.
11.
Parties in Interest. The agreement herein set forth has been and is made solely for the benefit of the Underwriters, the
Company, the directors and the officers of the Company as shall have signed the Registration Statement and the controlling persons, if
any, referred to in Section 7 hereof, and their respective successors, assigns, executors and administrators, and, except as expressly
otherwise provided in Section 8 hereof, no other person shall acquire or have any right under or by virtue of this Agreement.
12. Definition
of Certain Terms. The term “Underwriters”, as used herein, shall be deemed to mean the several persons, firms
or corporations named in Schedule II hereto (including the Representatives herein mentioned, if so named), and the term “Representatives”,
as used herein, shall be deemed to mean the representative or representatives designated by, or in the manner authorized by, the Underwriters
in Schedule I hereto, which Representatives are hereby designated. If the firm or firms listed in Schedule I hereto are
the same as the firm or firms listed in Schedule II hereto, then the terms “Underwriters” and “Representatives”,
as used herein, shall each be deemed to refer to such firm or firms. The term “successors” as used in this Agreement shall
not include any purchaser, as such purchaser, of any of the Securities from any of the respective Underwriters.
13.
Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York.
14. Counterparts.
This Agreement may be executed by any one or more of the parties hereto in any number of counterparts, each of which shall be deemed
to be an original, but all such respective counterparts shall together constitute one and the same instrument.
15. No
Conflicts. The Company acknowledges and agrees that the Underwriters are acting solely in the capacity of an arm’s length contractual
counterparty to the Company with respect to the offering of the Offered Securities contemplated hereby (including in connection with
determining the terms of the offering of the Offered Securities) and not as a financial advisor or a fiduciary to, or an agent of, the
Company or any other person or entity. Additionally, the Underwriters are not advising the Company or any other person or entity as to
any legal, tax, investment, accounting or regulatory matters in any jurisdiction in connection with the offering of the Offered Securities
contemplated hereby. The Company shall consult with its own advisors concerning such matters and shall be responsible for making its
own independent investigation and appraisal of the transactions contemplated hereby, and the Underwriters shall have no responsibility
or liability to the Company with respect thereto. Any review by the Underwriters of the Company, the transactions contemplated hereby
or other matters relating to such transactions will be performed solely for the benefit of the Underwriters and shall not be on
behalf of the Company.
16.
Recognition of the U.S. Special Resolution Regimes. In the event that any Underwriter that is a Covered Entity (as defined
below) becomes subject to a proceeding under a U.S. Special Resolution Regime (as defined below), the transfer from such Underwriter of
this Agreement, and any interest and obligation in or under this Agreement, will be effective to the same extent as the transfer would
be effective under the U.S. Special Resolution Regime if this Agreement, and any such interest and obligation, were governed by the laws
of the United States or a state of the United States. In the event that any Underwriter that is a Covered Entity or a BHC Act Affiliate
(as defined below) of such Underwriter becomes subject to a proceeding under a U.S. Special Resolution Regime, Default Rights (as defined
below) under this Agreement that may be exercised against such Underwriter are permitted to be exercised to no greater extent than such
Default Rights could be exercised under the U.S. Special Resolution Regime if this Agreement were governed by the laws of the United States
or a state of the United States. “BHC Act Affiliate” has the meaning assigned to the term “affiliate” in,
and shall be interpreted in accordance with, 12 U.S.C. § 1841(k). “Covered Entity” means any of the following:
(i) a “covered entity” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 252.82(b); (ii) a
“covered bank” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 47.3(b); or (iii) a “covered
FSI” as that term is defined in, and interpreted in accordance with, 12 C.F.R. § 382.2(b). “Default Right”
has the meaning assigned to that term in, and shall be interpreted in accordance with, 12 C.F.R. §§ 252.81, 47.2 or 382.1, as
applicable. “U.S. Special Resolution Regime” means each of (x) the Federal Deposit Insurance Act and the regulations
promulgated thereunder and (y) Title II of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the regulations promulgated
thereunder.
17.
Execution by the Parties. This Agreement may be executed in counterparts, each of which when so executed shall be deemed
to be an original and all of which when taken together shall constitute one and the same instrument. The words “execution”,
“signed” and “signature” and words of like import in this Agreement or in any other certificate, agreement or
document related to this Agreement (to the extent not prohibited under governing documents) shall include images of manually executed
signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or
“jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures
and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received or
stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of
a paper-based record-keeping system to the fullest extent permitted by applicable law, including, without limitation, the Electronic Signatures
in Global and National Commerce Act, the Michigan Uniform Electronic Transactions Act, the New York State Electronic Signatures and Records
Act and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act or the
Uniform Commercial Code.
If the foregoing is in accordance
with your understanding, please sign and return to us counterparts hereof, and, upon the acceptance hereof by you, this letter and such
acceptance hereof shall constitute a binding agreement between each of the Underwriters and the Company.
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Very truly yours,
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CMS ENERGY CORPORATION
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By:
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/s/ Todd Wehner
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Name: Todd Wehner
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Title: Assistant Treasurer
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Confirmed and accepted as of the date first written above:
BOFA SECURITIES, INC.
MORGAN STANLEY & CO. LLC
RBC CAPITAL MARKETS, LLC
WELLS FARGO SECURITIES, LLC
FIFTH THIRD SECURITIES, INC.
KEYBANC CAPITAL MARKETS INC.
SMBC NIKKO SECURITIES AMERICA, INC.
CABRERA CAPITAL MARKETS, LLC
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BOFA SECURITIES, INC.
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MORGAN STANLEY & CO. LLC
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By:
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/s/ David Mikula
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By:
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/s/ Yurij Slyz
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Name: David Mikula
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|
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Name: Yurij Slyz
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Title: Managing Director
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Title: Executive Director
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RBC CAPITAL MARKETS, LLC
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WELLS FARGO SECURITIES, LLC
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By:
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/s/ Scott G. Primrose
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By:
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/s/ Carolyn Hurley
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Name: Scott G. Primrose
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Name: Carolyn Hurley
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Title: Authorized Signatory
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Title: Managing Director
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SCHEDULE I
BofA Securities, Inc.
1540 Broadway
NY8-540-26-02
New York, New York 10036
Attention: High Grade Transaction Management/Legal
Facsimile: 212-901-7881
Morgan Stanley & Co. LLC
1585 Broadway, 29th Floor
New York, New York 10036
Attention: Investment Banking Division
Facsimile: 212-507-8999
RBC Capital Markets, LLC
Brookfield Place
200 Vesey Street, 8th Floor
New York, New York 10281
Attention: Transaction Management Group
Facsimile: 212-428-6308
Wells Fargo Securities, LLC
550 South Tryon Street, 5th Floor
Charlotte, North Carolina 28202
Attention: Transaction Management
Facsimile: 704-410-0326
SCHEDULE II
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Underwriters
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Number of Shares of
Securities
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BofA Securities, Inc.
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1,570,000
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Morgan Stanley & Co. LLC
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1,570,000
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RBC Capital Markets, LLC
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1,570,000
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Wells Fargo Securities, LLC
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1,570,000
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Fifth Third Securities, Inc.
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900,000
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KeyBanc Capital Markets Inc.
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900,000
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SMBC Nikko Securities America, Inc.
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900,000
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Cabrera Capital Markets, LLC
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220,000
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Total
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9,200,000
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SCHEDULE III
Information Constituting Part of the Time of
Sale Prospectus:
Final Term Sheet attached as Annex A hereto.
Information Not Constituting Part of the Time
of Sale Prospectus:
None.
ANNEX A
Filed under Rule 433
File No. 333-236742
Final Term Sheet
June 24, 2021
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Issuer:
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CMS Energy Corporation (the “Issuer”)
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Security:
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Depositary Shares (“Depositary Shares”), each representing a 1/1,000th interest in a share of Issuer’s 4.200% Cumulative
Redeemable Perpetual Preferred Stock, Series C (“Preferred Stock”)
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Authorized Shares of Preferred Stock:
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9,200
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Liquidation Preference:
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$25,000 per share of Preferred Stock (equivalent to $25.00 per Depositary Share) plus accumulated and unpaid dividends
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Size:
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$230,000,000 (9,200,000 Depositary Shares)
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Term:
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Perpetual
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Dividend Rate (Cumulative):
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4.200% per annum
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Dividend Payment Dates:
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Quarterly in arrears on January 15, April 15, July 15 and October 15 of each year, commencing on October 15, 2021
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Optional Redemption:
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Issuer may, at its option, redeem the Preferred Stock:
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Par Call:
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•
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in whole or in part, from time to time, on or after July 15, 2026, at a redemption price in cash equal to $25,000 per share of Preferred
Stock (equivalent to $25.00 per Depositary Share); or
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Ratings Event Call:
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•
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in whole but not in part, at any time within 120 days after the conclusion of any review or appeal process instituted by Issuer following
the occurrence of a Ratings Event (as defined in Issuer’s Preliminary Prospectus Supplement dated June 24, 2021), or, if no review
or appeal process is available or sought with respect to such Ratings Event, at any time within 120 days after the occurrence of such
Ratings Event, at a redemption price in cash equal to $25,500 per share of Preferred Stock (equivalent to $25.50 per Depositary Share)
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plus, in each case, but subject to certain exceptions, all accumulated and unpaid dividends (whether or not declared) to, but excluding, the redemption date
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Public Offering Price:
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100.000% ($25.00 per Depositary Share)
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Underwriting Discount:
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$0.7875 per Depositary Share for retail investors
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$0.5000 per Depositary Share for institutional investors
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Listing:
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Issuer intends to apply for listing of the Depositary Shares on the New York Stock Exchange and, if the application is approved, expects
trading to commence within 30 days following initial issuance
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Option to Purchase Additional Shares:
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None
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Trade Date:
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June 24, 2021
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Settlement Date*:
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July 1, 2021 (T+5)
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Expected Ratings
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(Moody’s / S&P / Fitch):
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____ (____) / ____ (____) / ____ (____)
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Note: A
securities rating is not a recommendation to buy, sell or hold securities and may be subject to revision or withdrawal at any time
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Joint Book-Running Managers:
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BofA Securities, Inc.
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Morgan Stanley & Co. LLC
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Wells Fargo Securities, LLC
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Co-Managers:
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Fifth Third Securities, Inc.
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KeyBanc Capital Markets Inc.
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SMBC Nikko Securities America, Inc.
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Cabrera Capital Markets, LLC
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CUSIP / ISIN:
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125896 837 / US1258968379
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* It is expected that delivery of the Depositary Shares will be made
on or about July 1, 2021, which will be the fifth business day (T+5) following the date hereof. Under Rule 15c6-1 under the Securities
Exchange Act of 1934, trades in the secondary market generally are required to settle in two business days (T+2), unless the parties to
any such trade expressly agree otherwise. Accordingly, the purchasers who wish to trade the Depositary Shares prior to the second business
day prior to settlement will be required to specify an alternate settlement cycle at the time of any such trade to prevent a failed settlement
and should consult their own advisors.
Issuer has filed a registration statement (including a prospectus,
as supplemented) with the Securities and Exchange Commission (“SEC”) for the offering to which this communication relates.
Before you invest, you should read the prospectus (as supplemented) in that registration statement and other documents Issuer has filed
with the SEC for more complete information about Issuer and the offering. You may get these documents for free by visiting EDGAR on the
SEC website at www.sec.gov. Alternatively, Issuer, any underwriter or any dealer participating in the offering will arrange to send you
the prospectus if you request it by calling BofA Securities, Inc. toll-free at 800-294-1322 or by email at dg.prospectus_requests@bofa.com,
Morgan Stanley & Co. LLC toll-free at 866-718-1649, RBC Capital Markets, LLC toll-free at 866-375-6829 or Wells Fargo Securities,
LLC toll-free at 800-645-3751.
Any disclaimers or other notices that may appear below are not applicable
to this communication and should be disregarded. Such disclaimers were automatically generated as a result of this communication being
sent via email or another communication system.
EXHIBIT A
{FORM OF OPINION OF MELISSA M. GLEESPEN, ESQ.}
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1.
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The Company is a duly organized, validly existing corporation in good standing under the laws of the State
of Michigan.
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2.
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All legally required corporate proceedings in connection with the authorization, issuance and validity
of the Securities and the sale of the Securities by the Company in accordance with the Underwriting Agreement have been taken; and no
approval, authorization, consent or order of any governmental regulatory body is required with respect to the Company’s execution
and delivery of, and performance of its obligations under, the Underwriting Agreement or the Deposit Agreement, the authorization, execution
or filing of the Certificate of Designation by the Company, the issuance and deposit of the Preferred Shares or the issuance and sale
of, and the performance by the Company of its obligations under, the Securities (other than in connection with or in compliance with the
provisions of the securities or blue sky laws of any state, as to which I express no opinion, and the filing with and acceptance by the
Michigan Department of Licensing and Regulatory Affairs, Bureau of Commercial Services of the Certificate of Designation, which has been
so filed and accepted).
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3.
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The Registration Statement was automatically effective upon filing on February 28, 2020; any required
filing of each prospectus relating to the Securities (including the Prospectus) pursuant to Rule 424 under the Act has been made in compliance
with and in the time periods provided by Rule 424 under the Act and all material required to be filed by the Company pursuant to Rule
433(d) under the Act has been filed with the Commission within the applicable time period prescribed for such filing by Rule 164 and Rule
433 under the Act; the Registration Statement, at the time it became effective and at the Applicable Effective Time, each of the Preliminary
Prospectus and the Prospectus, at the time it was filed with the Commission pursuant to Rule 424 under the Act, and each document incorporated
in each of the Preliminary Prospectus and the Prospectus as such document was originally filed pursuant to the Exchange Act (except for
(i) the financial statements and schedules contained or incorporated by reference therein (including the notes thereto and the auditors’
reports thereon) or omitted therefrom and (ii) the other financial information contained or incorporated by reference therein or omitted
therefrom, as to which I express no opinion), complied as to form as of their respective effective or issue dates (including, without
limitation, the Applicable Effective Time) in all material respects with the Act and the Exchange Act and the applicable rules and regulations
of the Commission thereunder; and at the Time of Purchase the Registration Statement is effective under the Act and, to the best of my
knowledge after due inquiry, no proceedings for a stop order with respect to the Registration Statement are threatened or pending under
the Act.
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4.
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The Underwriting Agreement has been duly authorized, executed and delivered by the Company.
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5.
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The Certificate of Designation has been duly authorized by the Company.
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6.
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The Deposit Agreement has been duly authorized, executed and delivered by the Company.
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7.
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The Securities have been duly authorized by the Company.
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8.
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The Preferred Shares have been duly authorized by the Company. The deposit of the Preferred Shares in
accordance with the provisions of the Deposit Agreement has been duly authorized by the Company.
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9.
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The form of certificate used to evidence the Securities complies in all material respects with all applicable
statutory requirements and with any applicable requirements of the Restated Articles of Incorporation and the Amended and Restated Bylaws
of the Company and the requirements of the NYSE.
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10.
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None of the issuance or sale of the Securities, the execution or delivery by the Company of the Underwriting
Agreement or the Deposit Agreement, the execution and filing by the Company of the Certificate of Designation, the performance by the
Company of its obligations under the Underwriting Agreement, the Securities, the Deposit Agreement or the Certificate of Designation or
the consummation of the transactions contemplated therein, including the issuance and deposit of the Preferred Shares with the Depositary
against the issuance of the Securities in accordance with the terms of the Certificate of Designation and the Deposit Agreement, will
violate the provisions of the Restated Articles of Incorporation or the Amended and Restated Bylaws of the Company or will result in a
violation of any of the terms or provisions of any Applicable Laws (as defined below) or, to my knowledge, any court order to which the
Company is subject or a breach of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust,
loan agreement or other material agreement or instrument to which the Company is a party. For purposes hereof, the term “Applicable
Laws” means those state laws of the State of Michigan and those federal laws of the United States of America that, in my experience
and without independent investigation, are normally applicable to transactions of the type contemplated by the Underwriting Agreement;
provided, that the term “Applicable Laws” shall not include federal or state securities or blue sky laws (including,
without limitation, the Act, the Exchange Act, the Trust Indenture Act of 1939, as amended, or the Investment Company Act of 1940, as
amended), antifraud laws or in each case any rules or regulations thereunder or similar matters.
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11.
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The Company is not an “investment company” or a company “controlled” by an “investment
company” within the meaning of the Investment Company Act of 1940, as amended.
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12.
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Except for the outstanding shares of preferred stock of Consumers Energy Company, all of the outstanding capital stock of each of Consumers Energy Company and CMS Enterprises Company is owned directly or indirectly by the Company, free and clear of any security interest, claim, lien or other encumbrance (except as disclosed in the Time of Sale Prospectus) or preemptive rights, and there are no outstanding rights (including, without limitation, preemptive rights), warrants or options to acquire, or instruments convertible into or exchangeable for, any shares of capital stock or other equity interest in any of Consumers Energy Company and CMS Enterprises Company or any contract, commitment, agreement, understanding or arrangement of any kind relating to the issuance of any such capital stock, any such convertible or exchangeable securities or any such rights, warrants or options.
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13.
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The Company has an authorized capitalization as set forth in the Time of Sale Prospectus and all of the
issued shares of capital stock of the Company have been duly and validly authorized and issued and are fully paid and non-assessable.
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14.
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The issuance of the Preferred Shares and the Securities are not subject to the preemptive or other similar
rights of any securityholder of the Company or any of its subsidiaries.
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15.
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To my knowledge, there is no pending or threatened action, suit, proceeding, inquiry or investigation
against the Company or any Significant Subsidiary of the Company before or brought by any person or entity that (i) is required to be
disclosed in the Registration Statement, the Preliminary Prospectus, the Time of Sale Prospectus or the Prospectus that is not disclosed
or (ii) would reasonably be expected to materially and adversely affect the consummation of the transactions contemplated in the Underwriting
Agreement or the performance by the Company of its obligations thereunder.
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16.
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Nothing has come to my attention that would lead me to believe that the Registration Statement (other
than (i) the operating statistics, financial statements and schedules contained or incorporated by reference therein (including the notes
thereto and the auditors’ reports thereon) or omitted therefrom and (ii) the other financial or statistical information contained
or incorporated by reference therein or omitted therefrom, as to which I express no opinion or belief), at the time the Registration Statement
became effective and at the Applicable Effective Time, contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein not misleading.
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17.
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Nothing has come to my attention that would lead me to believe that the Time of Sale Prospectus (other
than (i) the operating statistics, financial statements and schedules contained or incorporated by reference therein (including the notes
thereto and the auditors’ reports thereon) or omitted therefrom and (ii) the other financial or statistical information contained
or incorporated by reference therein or omitted therefrom, as to which I express no opinion or belief), as of the Time of Sale, included
an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
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18.
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Nothing has come to my attention that would lead me to believe that the Prospectus (other than (i) the operating statistics, financial statements and schedules contained or incorporated by reference therein (including the notes thereto and the auditors’ reports thereon) or omitted therefrom and (ii) the other financial or statistical information contained or incorporated by reference therein or omitted therefrom, as to which I express no opinion or belief), as of its date or at the date hereof, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
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EXHIBIT B
{FORM OF OPINION OF MILLER, CANFIELD, PADDOCK AND
STONE, P.L.C.}
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1.
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The Preferred Shares, when issued and delivered by the Company pursuant to the Underwriting Agreement
and the Deposit Agreement against payment of the consideration set forth in the Underwriting Agreement and the Deposit Agreement, will
be duly and validly issued, fully paid and non-assessable.
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2.
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The issuance of the Preferred Shares is not subject to the preemptive rights of any securityholder of
the Company under the Michigan Business Corporation Act, as amended (the “MBCA”).
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3.
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The form of certificate used to evidence the Preferred Shares complies in all material respects with all
applicable requirements of the MBCA and with any applicable requirements of the Restated Articles of Incorporation and the Amended and
Restated Bylaws of the Company.
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4.
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The statements made in the Time of Sale Prospectus and the Prospectus under the captions “Description
of Securities”, “Certain Terms of the Series C Preferred Stock” and “Certain Terms of the Depositary Shares”,
to the extent that such statements purport to summarize certain provisions of the Certificate of Designation and the Preferred Shares
or legal matters relating thereto, accurately summarize such provisions or legal matters in all material respects.
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EXHIBIT C
{FORM OF OPINION AND LETTER OF SIDLEY AUSTIN LLP}
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1.
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The Deposit Agreement constitutes a valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting creditors’ rights generally or by general principles of equity (regardless of whether
enforcement is considered in a proceeding at law or in equity).
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2.
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Assuming that the Deposit Agreement has been duly authorized, executed and delivered by, and is a valid,
binding and enforceable agreement of, the Depositary, and further assuming the due execution, issuance and delivery of the Depositary
Receipts evidencing the Securities by the Depositary pursuant to the Deposit Agreement against the deposit by the Company of duly authorized
and validly issued, fully paid and non-assessable Preferred Shares, the Depositary Receipts will entitle the holders thereof to the rights
specified therein and in the Deposit Agreement, except as may be limited by bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, fraudulent transfer and other similar laws relating to or affecting the rights and remedies of creditors generally and by
general principles of equity (whether considered in a proceeding in equity or at law).
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3.
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No approval, authorization, consent or order of any state governmental body of the State of New York is
required under the laws of the State of New York for the Company’s execution and delivery of the Deposit Agreement or the issuance
and sale of the Securities by the Company to the Underwriters pursuant to the Underwriting Agreement or the deposit of the Preferred Shares
by the Company with the Depositary pursuant to the Deposit Agreement (other than, in each case, in connection with or in compliance with
the provisions of the securities or blue sky laws of the State of New York, as to which we express no opinion).
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4.
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None of the issuance and sale of the Securities by the Company to the Underwriters pursuant to the Underwriting
Agreement, the execution and delivery by the Company of the Deposit Agreement or the deposit of the Preferred Shares by the Company with
the Depositary pursuant to the Deposit Agreement will result in a violation by the Company of any of the terms or provisions of the laws
of the State of New York that, in our experience and without independent investigation, are normally applicable to transactions of the
type contemplated by the Underwriting Agreement (but excluding state securities or blue sky laws).
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5.
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The statements made in the Time of Sale
Prospectus and the Prospectus under the captions “Description of Securities”, “Certain Terms of the Series C
Preferred Stock” and “Certain Terms of the Depositary Shares”, to the extent that such statements purport to
describe certain provisions of the Deposit Agreement (including the Depositary Shares), accurately describe such provisions in all
material respects, except that we express no opinion in this paragraph with respect to any statements regarding the number of
outstanding shares of any class or series of capital stock of the Company, to the effect that any shares of any class or series of
capital stock of the Company have been or will be duly authorized, validly issued, fully paid or non-assessable or regarding
preemptive or similar rights.
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6.
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The statements made in the Time of Sale Prospectus and the Prospectus under the caption “Material
United States Federal Income Tax Considerations”, to the extent that such statements purport to describe matters of United States
federal income tax law and regulations, accurately describe such matters in all material respects.
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In acting as special counsel to the Company in
connection with the transactions described in such letter, we have participated in conferences with officers and other representatives
of the Company, including certain of the Company’s internal counsel, representatives of the independent public accountants for the
Company and representatives of and counsel to the Underwriters, at which conferences certain contents of the Time of Sale Prospectus and
the Prospectus and related matters were discussed. Although we are not passing upon or assuming responsibility for the accuracy, completeness
or fairness of the statements included or incorporated by reference in or omitted from the Registration Statement, the Time of Sale Prospectus
or the Prospectus and have made no independent check or verification thereof (except as set forth in paragraphs (5) and (6) above), in
the course of our review and our discussions in the conferences described above, no facts have come to our attention that have caused
us to believe that:
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1.
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the Registration Statement, at the time it first became effective or at the Applicable Effective Time,
contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make
the statements therein not misleading;
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2.
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the Time of Sale Prospectus, as of the Time of Sale, included an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they
were made, not misleading; or
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3.
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the Prospectus, as of the date of the Prospectus or as of the date hereof, included or includes an untrue
statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading;
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except in each case that we express no belief
and make no statement with respect to (A) the financial statements and schedules and other financial or statistical data included or incorporated
by reference in or omitted from the Registration Statement, the Time of Sale Prospectus or the Prospectus or the documents incorporated
by reference therein, (B) any trustee’s statement of eligibility on Form T-1 or (C) assessments of, and reports on, the effectiveness
of internal control over financial reporting.
Exhibit 3.1
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515
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02 E3
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JUN 29 2021
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8004973535
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CERTIFICATE
OF DESIGNATION OF
4.200% CUMULATIVE
REDEEMABLE PERPETUAL
PREFERRED STOCK,
SERIES C
OF
CMS ENERGY CORPORATION
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FILED
JUN 29 2021
ADMINISTRATOR
CORPORATIONS
DIVISION
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CMS Energy Corporation, a corporation organized
and existing under the Business Corporation Act of the State of Michigan (the “Corporation”), in accordance with the
provisions of Section 302(3) thereof, does hereby certify:
The board of directors of the Corporation (the
“Board of Directors”), in accordance with Article III of the Restated Articles of Incorporation, as amended, of the
Corporation, the Amended and Restated Bylaws of the Corporation and applicable law, authorized the issuance and sale by the Corporation
of shares of its Preferred Stock pursuant to resolutions adopted by the Board of Directors effective May 1, 2020 (collectively, the “Resolutions”)
and granted the Special Financing Committee of the Board of Directors (the “Committee”) the full authority to act on
behalf of the Board of Directors for the purposes stated in the Resolutions with respect to the proposed issuance and sale by the Corporation
of shares of its Preferred Stock, and pursuant to the authority conferred upon the Committee in accordance with Section 528(1)(a) of the
Business Corporation Act of the State of Michigan and the Resolutions, the Committee adopted the following resolution creating and setting
forth the terms of a series of Preferred Stock of the Corporation designated as the “4.200% Cumulative Redeemable Perpetual Preferred
Stock, Series C.”
RESOLVED, that pursuant to the authority vested
in the Committee and in accordance with the Resolutions, the provisions of the Restated Articles of Incorporation, as amended, of the
Corporation, the Amended and Restated Bylaws of the Corporation and applicable law, a series of Preferred Stock, par value $0.01 per share,
of the Corporation be and hereby is created, and that the designation and number of shares of such series, and the voting and other powers,
preferences and relative, participating, optional or other special rights, and the qualifications, limitations or restrictions, of the
shares of such series (in addition to the provisions of the Restated Articles of Incorporation, as amended, of the Corporation, which
are applicable to Preferred Stock regardless of series), are as follows:
SECTION 1. Designation. The distinctive
serial designation of such series of Preferred Stock is “4.200% Cumulative Redeemable Perpetual Preferred Stock, Series C”
(the “Series C Preferred Stock”). Each share of Series C Preferred Stock shall be identical in all respects to every
other share of Series C Preferred Stock, except as to the respective dates from which dividends thereon shall accumulate, to the extent
such dates may differ as permitted pursuant to Section 4(a) below.
SECTION 2. Number of Shares and Ranking.
(a) The
authorized number of shares of Series C Preferred Stock shall be 9,200. Such number of shares may be decreased by resolution of the Board
of Directors; provided that no decrease shall reduce the number of shares of Series C Preferred Stock to a number that is less than that
of the shares of Series C Preferred Stock then outstanding. Any such decrease in the number of shares of Series C Preferred Stock shall
have the status of authorized but unissued shares of Preferred Stock undesignated as to series and may with any and all other authorized
but unissued shares of Preferred Stock be designated or redesignated and issued or reissued, as the case may be, as part of any series
of Preferred Stock.
(b) The
Series C Preferred Stock shall rank, with respect to dividend rights and distribution rights upon the liquidation, winding-up or
dissolution of the Corporation: (i) senior to the Common Stock and each other class or series of Junior Stock; (ii) on parity with each
class or series of Parity Stock; and (iii) junior to each class or series of Senior Stock.
SECTION 3. Definitions. As used herein
with respect to the Series C Preferred Stock:
“Articles” means the Restated
Articles of Incorporation of the Corporation, as amended and as the same may be amended, restated or amended and restated from time to
time.
“Board of Directors” means the Board of
Directors of the Corporation.
“Business Day” means any day
other than a Saturday or Sunday or any other day on which commercial banks in New York City are authorized or required by law or executive
order to close.
“Bylaws” means the Amended and
Restated Bylaws of the Corporation, as they may be amended, restated or amended and restated from time to time.
“Certificate of Designation”
means this Certificate of Designation establishing the terms of the Series C Preferred Stock.
The term “close of business” means 5:00
p.m., New York City time.
“Common Stock” means the common stock of
the Corporation.
“Corporation” means CMS Energy Corporation,
a Michigan corporation.
“Dividend Disbursing Agent” means
Equiniti Trust Company d/b/a EQ Shareowner Services, the Corporation’s duly appointed dividend disbursing agent for the Series C
Preferred Stock, or any successor appointed under Section 9.
“Dividend Payment Date” has the
meaning set forth in Section 4(a).
“Dividend Period” means the period
from, and including, a Dividend Payment Date to, but excluding, the next Dividend Payment Date, except that the initial Dividend Period
shall commence on, and include, the Initial Issue Date.
“DTC” has the meaning set forth
in Section 6.
“Holder” means each Person in
whose name any share of the Series C Preferred Stock is registered on the stock register of the Corporation, who shall be treated by the
Corporation and the Registrar as the absolute owner of such share of the Series C Preferred Stock.
“Initial Issue Date” means July
1, 2021, the original issue date of shares of the Series C Preferred Stock.
“Junior Stock” means: (a) the
Common Stock; and (b) each other class or series of capital stock of the Corporation established after the Initial Issue Date the terms
of which do not expressly provide that such class or series shall rank senior to or on parity with the Series C Preferred Stock as to
dividend rights and distribution rights upon the Corporation’s liquidation, winding-up or dissolution.
“Liquidation Dividend Amount”
shall have the meaning set forth in Section 7(a).
“Liquidation Preference” means,
as to the Series C Preferred Stock, $25,000 per share thereof, subject to adjustment as provided in Section 16(b).
“Nonpayment Event” shall have
the meaning set forth in Section 8(b)(i).
“Officer” shall have the meaning
set forth in Section 14(b).
“Parity Stock” means each class
or series of capital stock of the Corporation established after the Initial Issue Date the terms of which expressly provide that such
class or series shall rank on parity with the Series C Preferred Stock as to dividend rights and distribution rights upon the Corporation’s
liquidation, winding-up or dissolution.
“Person” means any individual,
partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture,
governmental authority or other entity of whatever nature.
“Preferred Directors” shall have the meaning
set forth in Section 8(b)(i).
“Preferred Stock” means the preferred stock
of the Corporation.
“Prospectus Supplement” means
the prospectus supplement dated June 24, 2021 relating to the initial offering and sale of the depositary shares each representing a 1/1,000th
interest in a share of the Series C Preferred Stock.
“Ratings Event” means that, and
shall be deemed to have occurred when, any nationally recognized statistical rating organization as defined in Section 3(a)(62) of the
Securities Exchange Act of 1934, as amended, or in any successor provision thereto, that then publishes a rating for the Corporation (a
“Rating Agency”), amends, clarifies or changes the criteria it uses to assign equity credit to securities such as the
Series C Preferred Stock, which amendment, clarification or change results in:
(a) the
shortening of the length of time the Series C Preferred Stock is assigned a particular level of equity credit by that Rating Agency as
compared to the length of time the Series C Preferred Stock would have been assigned that level of equity credit by that Rating Agency
or its predecessor on the Initial Issue Date; or
(b) the
lowering of the equity credit (including up to a lesser amount) assigned to the Series C Preferred Stock by that Rating Agency as compared
to the equity credit assigned by that Rating Agency or its predecessor on the Initial Issue Date.
“Record Date” has the meaning
set forth in Section 4(a).
“Redemption Date” means any date
fixed for redemption of any shares of Series C Preferred Stock pursuant to the provisions of Section 5.
“Registrar” means Equiniti Trust
Company d/b/a EQ Shareowner Services, the Corporation’s duly appointed registrar for the Series C Preferred Stock, or any successor
appointed under Section 9.
“Senior Stock” means each class
or series of capital stock of the Corporation established after the Initial Issue Date the terms of which expressly provide that such
class or series shall rank senior to the Series C Preferred Stock as to dividend rights or distribution rights upon the Corporation’s
liquidation, winding-up or dissolution.
“Series C Preferred Stock” has
the meaning set forth in Section 1.
“Share Dilution Amount” means
the increase in the number of diluted shares outstanding (determined in accordance with accounting principles generally accepted in the
United States, and as measured from the date of the Corporation’s consolidated financial statements most recently filed with the
Securities and Exchange Commission prior to the Initial Issue Date) resulting from the grant, vesting or exercise of equity-based compensation
to directors, employees, contractors and agents and equitably adjusted for any stock split, stock dividend, reverse stock split, reclassification
or similar event.
“Transfer Agent” means Equiniti
Trust Company d/b/a EQ Shareowner Services, the Corporation’s duly appointed transfer agent for the Series C Preferred Stock, or
any successor appointed under Section 9.
“Voting Preferred Stock” means
any series of Preferred Stock, other than the Series C Preferred Stock, ranking equally with the Series C Preferred Stock either as to
dividends or to the distribution of assets upon liquidation, dissolution or winding-up of the Corporation and upon which voting rights
similar to the voting rights of the Series C Preferred Stock in all material respects have been established for such series of Preferred
Stock and which are exercisable at the time of any vote of the Preferred Stock.
SECTION 4. Dividends.
(a) Rate.
Subject to the rights of holders of any class or series of capital stock of the Corporation ranking senior to the Series C Preferred Stock
with respect to dividends, Holders shall be entitled to receive, when, as and if declared by the Board of Directors (or an authorized
committee thereof) out of funds of the Corporation legally available for payment, cash dividends at the rate per annum of 4.200% on the
Liquidation Preference per share of the Series C Preferred Stock. Declared dividends on the Series C Preferred Stock will be
payable in arrears on January 15, April 15, July 15 and October 15 of each year, commencing on October 15, 2021 (each, a “Dividend
Payment Date”). Dividends on the Series C Preferred Stock shall accumulate daily from and including the most recent date as
to which dividends shall have been paid or, if no dividends have been paid, from the Initial Issue Date (or such other date as may be
set forth in the certificate evidencing the relevant shares of Series C Preferred Stock) without regard to whether funds are legally available
for the declaration or payment of such dividends. Declared dividends shall be payable on the relevant Dividend Payment Date to Holders
as they appear on the Corporation’s stock register at the close of business on the immediately preceding January 1, April 1, July
1 or October 1, as applicable (each, a “Record Date”). These Record Dates shall apply regardless of whether a particular
Record Date is a Business Day. If a Dividend Payment Date is not a Business Day, payment of declared dividends shall be made on the next
succeeding Business Day, without any interest, additional dividends, or other payment in lieu of interest or additional dividends accumulating
with respect to this delay.
Dividends accumulating or payable on the
Series C Preferred Stock for any Dividend Period (or portion thereof) shall be calculated on the basis of a 360-day year consisting of
twelve 30-day months. Accumulations of dividends on shares of the Series C Preferred Stock shall not bear interest or dividends on such
accumulated amount.
No dividend shall be declared or paid
on, or any sum of cash set aside for the payment of dividends on, any outstanding shares of Series C Preferred Stock with respect to any
Dividend Period unless all dividends for all preceding Dividend Periods have been declared and paid on, or a sufficient sum of cash has
been set aside for the payment of such dividends on, all outstanding shares of Series C Preferred Stock.
(b) Priority
of Dividends. So long as any share of the Series C Preferred Stock remains outstanding, no dividend or distribution shall be declared
or paid on Common Stock or any other Junior Stock, and no Common Stock or any other Junior Stock shall be repurchased, redeemed or otherwise
acquired for consideration by the Corporation or any of its subsidiaries unless, in each case, all accumulated and unpaid dividends for
all preceding Dividend Periods have been declared and paid, or a sufficient sum of cash has been set aside for the payment of such dividends,
on all outstanding shares of the Series C Preferred Stock. The foregoing limitation shall not apply to: (i) any dividend or distribution
payable in shares of Common Stock or other Junior Stock, together with cash in lieu of any fractional share; (ii) repurchases, redemptions
or other acquisitions of Common Stock or other Junior Stock in connection with the administration of any benefit or other incentive plan,
including any employment contract, including, without limitation, (x) purchases to offset the Share Dilution Amount pursuant to a publicly
announced repurchase plan; provided that any purchases to offset the Share Dilution Amount shall in no event exceed the Share Dilution
Amount, (y) the forfeiture of unvested shares of restricted stock or share withholdings or other surrender of shares to which the holder
may otherwise be entitled upon exercise, delivery or vesting of equity awards (whether in payment of applicable taxes, the exercise price
or otherwise), and (z) the payment of cash in lieu of fractional shares; (iii) purchases of fractional interests in shares of Common Stock
or other Junior Stock pursuant to the conversion or exchange provisions of such shares of other Junior Stock or any securities exchangeable
for or convertible into shares of Common Stock or other Junior Stock; (iv) any dividends or distributions of rights or Common Stock or
other Junior Stock in connection with a shareholders’ rights plan or any redemption or repurchase of rights pursuant to any shareholders’
rights plan; (v) repurchases of Common Stock or other Junior Stock pursuant to a contractually binding requirement to buy Common Stock
or other Junior Stock existing prior to the preceding Dividend Period, including under a contractually binding stock repurchase plan;
(vi) the deemed purchase or acquisition of fractional interests in shares of Common Stock or other Junior Stock pursuant to the conversion
or exchange provisions of such shares or the security being converted or exchanged; (vii) the acquisition by the Corporation or any of
its subsidiaries of record ownership in Common Stock or other Junior Stock for the beneficial ownership of any other Persons (other than
the Corporation or any of its subsidiaries), including as trustees or custodians, and the payment of cash in lieu of fractional shares;
and (viii) the exchange or conversion of Junior Stock for or into other Junior Stock and the payment of cash in lieu of fractional shares.
When dividends on shares of the Series C Preferred
Stock with respect to any previously completed Dividend Period (A) have not been declared and paid in full or (B) have been declared but
a sum of cash sufficient for payment thereof has not been set aside for the benefit of the Holders thereof on the applicable Record Date,
no dividends may be declared or paid on any Parity Stock unless dividends are declared on the shares of Series C Preferred Stock such
that the respective amounts of such dividends declared on the shares of Series C Preferred Stock and such Parity Stock shall bear the
same ratio to each other as all accumulated dividends and all declared and unpaid dividends per share on the shares of Series C Preferred
Stock and such Parity Stock bear to each other; provided, however, that any unpaid dividends will continue to accumulate. The foregoing
limitation shall not apply to (i) purchases of fractional interests in shares of Parity Stock pursuant to the conversion or exchange provisions
of such shares of Parity Stock or any securities exchangeable for or convertible into shares of Parity Stock, (ii) the deemed purchase
or acquisition of fractional interests in shares of Parity Stock pursuant to the conversion or exchange provisions of such shares or the
security being converted or exchanged, (iii) the acquisition by the Corporation or any of its subsidiaries of record ownership in Parity
Stock for the beneficial ownership of any other Persons (other than for the Corporation or any of its subsidiaries), including as trustees
or custodians, and the payment of cash in lieu of fractional shares and (iv) the exchange or conversion of Parity Stock for or into other
Parity Stock (with the same or lesser aggregate liquidation amount) or Junior Stock and the payment of cash in lieu of fractional shares.
Subject only to the foregoing, and not otherwise,
such dividends (payable in cash, securities or other property) as may be determined by the Board of Directors (or an authorized committee
thereof) may be declared and paid on any securities, including Common Stock, from time to time out of any funds legally available for
such payment, and Holders shall not be entitled to participate in any such dividends declared on securities other than the Series C Preferred
Stock.
SECTION 5. Optional Redemption.
The Corporation may, at its option, redeem the Series C Preferred
Stock:
(a) in
whole or in part, from time to time, on or after July 15, 2026 at a redemption price in cash equal to $25,000 per share of Series C Preferred
Stock, subject to equitable adjustment as provided below; or
(b) in
whole but not in part, at any time within 120 days after the conclusion of any review or appeal process instituted by the
Corporation following the occurrence of a Ratings Event, or, if no review or appeal process is available or sought with respect to
such Ratings Event, at any time within 120 days after the occurrence of such Ratings Event, at a redemption price in cash equal to
$25,500 per share of Series C Preferred Stock, subject to equitable adjustment as provided below,
plus, in each case, all
accumulated and unpaid dividends (whether or not declared) to, but excluding, such Redemption Date; provided that,
notwithstanding the foregoing, if a Redemption Date for any shares of Series C Preferred Stock occurs subsequent to a Record Date
and on or prior to the next succeeding Dividend Payment Date, then the full amount of accumulated and unpaid dividends (whether or
not declared) on such shares of Series C Preferred Stock to, but excluding, such Dividend Payment Date shall be paid on such
Dividend Payment Date to the Persons who were the Holders of such shares at the close of business on such Record Date and such
accumulated and unpaid dividends shall not be paid or required to be paid on the Redemption Date and shall not constitute a part of
the redemption price of such shares.
The redemption price shall be subject to equitable adjustment whenever
there shall occur a stock split, combination, reclassification or other similar event involving the Series C Preferred Stock. Any such
adjustments shall be determined in good faith by the Board of Directors (or an authorized committee thereof) and submitted by the Board
of Directors (or such authorized committee thereof) to the Transfer Agent.
SECTION 6. Redemption Procedures.
If the Series C Preferred Stock is to be redeemed,
the notice of redemption shall be given by first class mail, postage prepaid, or by overnight air courier guaranteeing next day delivery,
to the Holders of the Series C Preferred Stock to be redeemed, mailed not less than 30 days, nor more than 60 days, prior to the Redemption
Date (provided that, if the Series C Preferred Stock is held in book-entry form evidenced by a global certificate held by
The Depository Trust Company (“DTC,” which term includes any successor thereto) or its nominee, the Corporation may
give such notice in any manner permitted or required by DTC. Each notice of redemption shall include a statement setting forth:
(a) the
Redemption Date;
(b) the
number of shares of Series C Preferred Stock to be redeemed and, if less than all the shares of Series C Preferred Stock held by such
Holder are to be redeemed, the number of such shares of Series C Preferred Stock to be redeemed from such Holder;
(c) the
redemption price;
(d) the
place or places where Holders may surrender certificates evidencing the Series C Preferred Stock for payment of the redemption price;
and
(e) that
dividends on the shares of Series C Preferred Stock to be redeemed shall cease to accumulate from and after such Redemption Date.
If notice of redemption of any shares of Series
C Preferred Stock has been given, and if the funds necessary for such redemption have been set aside by the Corporation for the benefit
of the Holders of the shares of Series C Preferred Stock so called for redemption, then, from and after the Redemption Date, dividends
shall cease to accumulate on such shares of Series C Preferred Stock, and such shares of Series C Preferred Stock shall no longer be deemed
outstanding and all rights of the Holders of such shares of Series C Preferred Stock shall terminate, except for (i) the right of the
Holders thereof to receive the amount payable with respect to such redemption, without interest and (ii) if the Redemption Date occurs
subsequent to a Record Date and on or prior to the next succeeding Dividend Payment Date, the right of the Persons who were the Holders
of such shares at the close of business on such Record Date to receive, on such Dividend Payment Date, the full amount of accumulated
and unpaid dividends (whether or not declared) on such shares to, but excluding, such Dividend Payment Date. Any funds unclaimed at the
end of one year from the Redemption Date shall, to the extent permitted by law, be released by the Corporation, after which time the Holders
of such Series C Preferred Stock so called for redemption shall look only to the Corporation for payment of the redemption price of such
Series C Preferred Stock. If a Redemption Date is not a Business Day, payment shall be made on the next succeeding Business Day, without
any interest, additional dividends, or other payment in lieu of interest or additional dividends accumulating with respect to this delay.
In case of any redemption of only part of the Series
C Preferred Stock at the time outstanding, the Series C Preferred Stock to be redeemed shall be selected either pro rata or by lot. If
fewer than all the shares represented by any certificate are redeemed, a new certificate shall be issued representing the unredeemed shares
without charge to the Holder thereof.
SECTION 7. Liquidation, Winding-up or Dissolution.
(a) In
the event of any liquidation, winding-up or dissolution of the Corporation, whether voluntary or involuntary, each Holder shall be entitled
to receive the Liquidation Preference per share of the Series C Preferred Stock, plus an amount (the “Liquidation Dividend Amount”)
equal to accumulated and unpaid dividends (whether or not declared) on such shares to (but excluding) the date fixed for liquidation,
winding-up or dissolution, to be paid out of the assets of the Corporation legally available for distribution to its shareholders, after
payment or provision for the Corporation’s debts, obligations and liabilities, including debt and other liabilities owed to the
Corporation’s creditors, as required by applicable law, and to holders of shares of any class or series of capital stock of the
Corporation ranking senior to the Series C Preferred Stock with respect to distribution rights upon the Corporation’s liquidation,
winding-up or dissolution and before any payment or distribution is made to holders of any Junior Stock (including, without limitation,
Common Stock).
(b) If,
upon the voluntary or involuntary liquidation, winding-up or dissolution of the Corporation, the amounts payable with respect to (i) the
Liquidation Preference plus the Liquidation Dividend Amount on the shares of Series C Preferred Stock and (ii) the liquidation preference
of, and the amount of accumulated and unpaid dividends (to, but excluding, the date fixed for such liquidation, winding-up or dissolution)
on, all other Parity Stock are not paid in full, the Holders and all holders of any such other Parity Stock shall share equally and ratably
in any distribution of the Corporation’s assets in proportion to their respective liquidation preferences and amounts equal to the
accumulated and unpaid dividends to which they are entitled.
(c) After
the payment to any Holder of the full amount of the Liquidation Preference and the Liquidation Dividend Amount for each of such Holder’s
shares of Series C Preferred Stock, such Holder as such shall have no right or claim to any of the remaining assets of the Corporation.
(d) Neither
the sale, lease or exchange of all or substantially all of the Corporation’s assets, nor the Corporation’s merger or consolidation
into or with any other Person, shall be deemed to be the voluntary or involuntary liquidation, winding-up or dissolution of the Corporation.
SECTION 8. Voting Rights.
(a) General.
Holders shall not have any voting rights except as set forth in this Section 8 and except as otherwise from time to time specifically
required by Michigan law. Without limitation to the foregoing, but subject to any limits and restrictions stated in the Articles, no vote
or consent of the Holders shall be required for the issuance of any additional shares of Series C Preferred Stock not exceeding the aggregate
number of shares authorized in this Certificate of Designation.
(b) Voting
Rights.
(i) Whenever
dividends on any shares of the Series C Preferred Stock or any other class or series of Preferred Stock that ranks on parity with the
Series C Preferred Stock as to payment of dividends, and upon which similar voting rights have been conferred and are exercisable, shall
have not been declared and paid for the equivalent of six quarterly dividend payments, whether or not for consecutive Dividend Periods
(a “Nonpayment Event”), the Holders of the Series C Preferred Stock (voting as a single class together with holders
of any and all other classes of authorized Preferred Stock having equivalent voting rights, whether or not the holders of such Preferred
Stock would be entitled to vote for the election of directors if such default in dividends did not exist) shall be entitled to vote as
a single class for the election of a total of two additional members of the Board of Directors (the “Preferred Directors”),
provided that the Board of Directors shall at no time include more than two Preferred Directors. In that event, the number of directors
on the Board of Directors shall automatically increase by two and, at the request of any Holder of Series C Preferred Stock or other Preferred
Stock with equivalent voting rights, a special meeting of the Holders of Series C Preferred Stock and the holders of any other class or
series of Preferred Stock that ranks on parity with Series C Preferred Stock as to payment of dividends and for which dividends have not
been paid shall be called for the election of the two directors (unless such request is received less than 90 days before the date fixed
for the next annual or special meeting of the shareholders, in which event such election shall be held at such next annual or special
meeting of shareholders), followed by such election at each subsequent annual meeting. These voting rights will continue until full dividends
have been paid regularly on the shares of the Series C Preferred Stock and any other class or series of Preferred Stock that ranks on
parity with the Series C Preferred Stock as to payment of dividends for at least four consecutive quarterly Dividend Periods or their
equivalent following the Nonpayment Event.
If and when full dividends have been paid
regularly on the Series C Preferred Stock and any other class or series of Preferred Stock that ranks on parity with the Series C Preferred
Stock as to payment of dividends for at least four consecutive quarterly Dividend Periods or their equivalent following a Nonpayment Event,
the Holders of the Series C Preferred Stock shall be divested of the foregoing voting rights (subject to revesting in the event of each
subsequent Nonpayment Event) and the term of office of each Preferred Director so elected shall terminate and the number of directors
on the Board of Directors shall automatically decrease by two. Any Preferred Director may be removed at any time without cause by the
Holders of a majority of the outstanding shares of the Series C Preferred Stock (together with holders of any and all other classes of
authorized Preferred Stock having equivalent voting rights, whether or not the holders of such Preferred Stock would be entitled to vote
for the election of directors if such default in dividends did not exist) when they have the voting rights described above. So long as
a Nonpayment Event continues, any vacancy in the office of a Preferred Director (other than prior to the initial election of the Preferred
Directors) may be filled by the written consent of the Preferred Director remaining in office or, if none remains in office, by a vote
of the Holders of the outstanding shares of Series C Preferred Stock (together with holders of any and all other class of authorized Preferred
Stock having equivalent voting rights, whether or not the holders of such Preferred Stock would be entitled to vote for the election of
directors if such default in dividends did not exist) to serve until the next annual meeting of shareholders. The Preferred Directors
shall each be entitled to one vote per director on any matter.
(ii) So
long as any shares of the Series C Preferred Stock are outstanding, in addition to any other vote or consent of shareholders required
by law or by the Articles, the affirmative vote or consent of the holders of not less than two-thirds of the total stated liquidation
preference (excluding accumulated and unpaid dividends thereon, and premiums or other similar amounts, if any) of all outstanding shares
of Series C Preferred Stock and all outstanding shares of any other series of Voting Preferred Stock (subject to Section 8(b)(iii)) at
the time outstanding and entitled to vote thereon, voting together as a single class, given in person or by proxy, either in writing without
a meeting or by vote at an annual or special meeting of such shareholders, shall be necessary for the Corporation to effect:
(A) any
amendment of the Articles, including this Certificate of Designation, so as to authorize, or increase the authorized amount of, any class
or series of Senior Stock;
(B) any
amendment of any provision of the Articles, other than this Certificate of Designation, so as to adversely affect the special rights,
preferences, privileges, restrictions, or voting powers of the Series C Preferred Stock; or
(C) any
consummation of a binding share exchange or reclassification involving the shares of the Series C Preferred Stock, or of a merger or consolidation
of the Corporation with or into another entity, unless in each case (x) the shares of the Series C Preferred Stock remain outstanding
or, in the case of any such merger or consolidation with respect to which the Corporation is not the surviving or resulting entity (or
the Series C Preferred Stock is otherwise exchanged or reclassified), are converted or reclassified into or exchanged for preferred stock
of the surviving or resulting entity or its ultimate parent, and (y) the shares of the Series C Preferred Stock that remain outstanding
or such shares of preferred stock, as the case may be, have rights, preferences, privileges and voting powers that, taken as a whole,
are not materially less favorable to the holders thereof than the rights, preferences, privileges and voting powers, taken as a whole,
of the Series C Preferred Stock immediately prior to the consummation of such transaction;
provided, however, that, for the avoidance
of doubt, (1) any increase in the amount of the Corporation’s authorized but unissued shares of Preferred Stock, (2) any increase
in the amount of the Corporation’s authorized Series C Preferred Stock or the issuance of any additional shares of the Series C
Preferred Stock or (3) the authorization or creation of any class or series of Parity Stock or Junior Stock, any increase in the amount
of authorized but unissued shares of such class or series of Parity Stock or Junior Stock or the issuance of any shares of such class
or series of Parity Stock or Junior Stock shall be deemed not to adversely affect (or to otherwise cause to be materially less favorable)
the rights, preferences, privileges, restrictions or voting powers of the Series C Preferred Stock, and shall not require the affirmative
vote or consent of the Holders, except as required pursuant to Michigan law.
(iii) If
any amendment, share exchange, reclassification, merger or consolidation specified in this Section 8(b) would adversely affect (or cause
to be materially less favorable, as applicable) the rights, preferences, privileges, restrictions or voting powers of one or more but
not all series of Voting Preferred Stock, then only the series of Voting Preferred Stock adversely affected (or the terms of which would
be materially less favorable, as applicable) and entitled to vote shall vote as a class in lieu of all other series of Voting Preferred
Stock.
(iv) Without
the consent of the Holders, to the fullest extent permitted by applicable law and so long as such action does not adversely affect the
special rights, preferences, privileges, restrictions or voting powers of the Series C Preferred Stock, the Corporation may amend, alter,
supplement, or repeal any terms of the Series C Preferred Stock, including by way of amendment to this Certificate of Designation, for
the following purposes:
(A) to
cure any ambiguity or mistake, or to correct or supplement any provision contained in this Certificate of Designation that may be defective
or inconsistent with any other provision contained in this Certificate of Designation;
(B) to
make any provision with respect to matters or questions relating to the Series C Preferred Stock that is not inconsistent with the provisions
of the Articles, including this Certificate of Designation; or
(C) to
waive any of the Corporation’s rights with respect thereto.
(v) Without
the consent of the Holders, to the fullest extent permitted by applicable law, the Corporation may amend, alter, supplement or repeal
any terms of the Series C Preferred Stock, including by way of amendment to this Certificate of Designation, in order to conform the terms
thereof to the description of the terms of the Series C Preferred Stock set forth under “Certain Terms of the Series C Preferred
Stock” in the Prospectus Supplement.
(c) Procedures
for Voting and Consents. The rules and procedures for calling and conducting any meeting of the Holders (including, without limitation,
the fixing of a Record Date in connection therewith), the solicitation and use of proxies at such a meeting, the obtaining of written
consents and any other procedural aspect or matter with regard to such a meeting or such consents shall be governed by any rules the Board
of Directors, in its discretion, may adopt from time to time, which rules and procedures shall conform to the requirements of the Articles,
the Bylaws, applicable law and the rules of any national securities exchange or other trading facility on which the Series C Preferred
Stock is listed or traded at the time.
SECTION 9. Transfer Agent, Registrar, and
Dividend Disbursing Agent. The duly appointed Transfer Agent, Registrar and Dividend Disbursing Agent for the Series C Preferred Stock
shall be Equiniti Trust Company d/b/a EQ Shareowner Services. The Corporation may, in its sole discretion, remove any Person serving as
the Transfer Agent, Registrar or Dividend Disbursing Agent; provided, however, that prior to the effectiveness of any such
removal the Corporation shall appoint a successor Transfer Agent, Registrar or Dividend Disbursing Agent, as the case may be, who shall
accept such appointment prior to the effectiveness of such removal. Upon any such removal or appointment, the Corporation shall send notice
thereof to the Holders.
SECTION 10. Record Holders. To the fullest
extent permitted by applicable law, the Corporation and the Transfer Agent may deem and treat the Holder of any shares of the Series
C Preferred Stock as the true and lawful owner thereof for all purposes.
SECTION 11. Notices. The Corporation shall
send all notices or communications to Holders of the Series C Preferred Stock pursuant to this Certificate of Designation in writing
by first class mail, postage prepaid, or by overnight air courier guaranteeing next day delivery, to the Holders’ respective addresses
shown on the register for the Series C Preferred Stock (provided that, if the Series C Preferred Stock is held in book-entry
form evidenced by a global certificate held by DTC or its nominee, the Corporation shall be permitted to send notices or communications
to Holders pursuant to the procedures of DTC, and notices and communications that the Corporation sends in this manner will be deemed
to have been properly sent to such Holders in writing).
SECTION 12. No Preemptive Rights. The Holders
shall have no preemptive or preferential rights to purchase or subscribe for any stock, obligations, warrants or other securities of
the Corporation of any class or series.
SECTION13. Other Rights. The shares of the
Series C Preferred Stock shall not have any rights, preferences, privileges or voting powers or relative, participating, optional or
other special rights, or qualifications, limitations or restrictions thereof, other than as set forth herein or in the Articles or as
provided by applicable law.
SECTION 14. Stock Certificates.
(a) Shares
of the Series C Preferred Stock shall initially be represented by stock certificates substantially in the form set forth as Exhibit A
hereto.
(b) Stock
certificates representing shares of the Series C Preferred Stock shall be signed by the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary (each, an “Officer”), in accordance with the Bylaws
and applicable Michigan law, by manual or facsimile signature.
(c) A
stock certificate representing shares of the Series C Preferred Stock shall not be valid until manually countersigned by an authorized
signatory of the Transfer Agent and Registrar. Each stock certificate representing shares of the Series C Preferred Stock shall be dated
the date of its countersignature.
(d) If
any Officer of the Corporation who has signed a stock certificate no longer holds that office at the time the Transfer Agent and Registrar
countersigns the stock certificate, the stock certificate shall be valid nonetheless.
SECTION 15. Replacement Certificates. If
physical certificates are issued, and any of the Series C Preferred Stock certificates shall be mutilated, lost, stolen or destroyed,
the Corporation shall, at the expense of the Holder, issue, in exchange and in substitution for and upon cancellation of the mutilated
Series C Preferred Stock certificate, or in lieu of and substitution for the Series C Preferred Stock certificate lost, stolen or destroyed,
a new Series C Preferred Stock certificate of like tenor and representing an equivalent Liquidation Preference of shares of the Series
C Preferred Stock, but only upon receipt of evidence of such loss, theft or destruction of such Series C Preferred Stock certificate
and indemnity, if requested, reasonably satisfactory to the Corporation and the Transfer Agent.
SECTION 16. Miscellaneous.
(a) The
Corporation shall pay any and all stock transfer and documentary stamp taxes that may be payable in respect of any initial issuance or
delivery of shares of the Series C Preferred Stock or certificates representing such shares.
(b) The
Liquidation Preference shall be subject to equitable adjustment whenever there shall occur a stock split, combination, reclassification
or other similar event involving the Series C Preferred Stock. Such adjustments shall be determined in good faith by the Board of Directors
(or an authorized committee thereof) and submitted by the Board of Directors (or such authorized committee thereof) to the Transfer Agent.
(c) Shares
of Series C Preferred Stock that are redeemed, purchased or otherwise acquired by the Corporation shall be cancelled and shall revert
to authorized but unissued shares of Series C Preferred Stock which may be reissued from time to time by the Corporation, unless the Board
of Directors determines by resolution that the shares shall have the status of authorized but unissued shares of Preferred Stock undesignated
as to series and may with any and all other authorized but unissued shares of Preferred Stock be designated or redesignated and issued
or reissued, as the case may be, as part of any series of Preferred Stock.
SECTION 17. Withholding Taxes. Notwithstanding
anything to the contrary, if the Corporation or other applicable withholding agent pays withholding taxes or backup withholding on behalf
of the Holder or beneficial owner, the Corporation or other applicable withholding agent may, at its option, set off such payments against
payments of cash on the Series C Preferred Stock.
Exhibit A
[FORM OF FACE OF
4.200% CUMULATIVE REDEEMABLE PERPETUAL PREFERRED
STOCK, SERIES C CERTIFICATE]
THE SHARES OF 4.200% CUMULATIVE REDEEMABLE PERPETUAL PREFERRED
STOCK, SERIES C ARE SUBJECT TO REDEMPTION AT THE OPTION OF THE CORPORATION (AS DEFINED BELOW) AT THE TIMES AND REDEMPTION PRICES, AND
ON TERMS AND CONDITIONS, SET FORTH IN THE CERTIFICATE OF DESIGNATION (AS DEFINED BELOW).
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Certificate Number [ ]
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[Number] Shares of 4.200% Cumulative
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Redeemable Perpetual Preferred Stock, Series C
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CUSIP: 125896 829
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ISIN: US1258968296
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CMS ENERGY CORPORATION
(Formed under the laws of the State of Michigan)
4.200% Cumulative Redeemable Perpetual Preferred
Stock, Series C
(Liquidation Preference as specified below)
CMS Energy Corporation, a Michigan corporation
(the “Corporation”), hereby certifies that [_________] (the “Holder”) is the registered owner of
[_______] shares of fully paid and non-assessable shares of the Corporation’s designated 4.200% Cumulative Redeemable Perpetual
Preferred Stock, Series C, with a Liquidation Preference of $25,000.00 per share (the “Series C Preferred Stock”).
The shares of the Series C Preferred Stock are transferable on the books and records of the Registrar, in person or by a duly authorized
attorney, upon surrender of this certificate duly endorsed and in proper form for transfer. The rights, privileges, restrictions and other
terms and provisions of the Series C Preferred Stock represented hereby are and shall in all respects be subject to the provisions of
the Certificate of Designation of 4.200% Cumulative Redeemable Perpetual Preferred Stock, Series C of CMS Energy Corporation dated June
28, 2021, as the same may be amended from time to time (the “Certificate of Designation”). Capitalized terms used herein
but not defined shall have the meanings given them in the Certificate of Designation. The Corporation will provide a copy of the Certificate
of Designation to the Holder without charge upon written request to the Corporation at its principal place of business.
Reference is hereby made to the provisions
of the Series C Preferred Stock set forth on the reverse hereof and in the Certificate of Designation, which provisions shall for all
purposes have the same effect as if set forth at this place. If the terms of this certificate conflict with the terms of the Certificate
of Designation, then the terms of the Certificate of Designation will control to the extent of such conflict.
Upon receipt of this executed certificate,
the Holder is bound by the Certificate of Designation and is entitled to the benefits thereunder.
Unless the Transfer Agent and Registrar
have properly countersigned this certificate, these shares of the Series C Preferred Stock shall not be entitled to any benefit under
the Certificate of Designation or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
Witness the facsimile seal of the Corporation and
the facsimile signatures of its duly authorized officers.
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CMS ENERGY CORPORATION
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CMS ENERGY CORPORATION
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By:
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By:
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Name:
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Name
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Title: [President or Vice President]
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Title: [Treasurer, Assistant Treasurer, Secretary or Assistant Secretary]
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[Impression or Facsimile of Corporation Seal]
COUNTERSIGNATURE
These are shares of the Series C Preferred Stock referred
to in the within-mentioned Certificate of Designation.
Dated: [__], [__]
Equiniti Trust Company d/b/a EQ Shareowner Services,
as Transfer Agent and Registrar
Name:
Title:
[FORM OF REVERSE OF
CERTIFICATE FOR SERIES C PREFERRED STOCK]
Cumulative cash dividends on each share of the Series C Preferred
Stock shall be payable at the rate provided in the Certificate of Designation.
The Corporation shall furnish without charge to
each Holder who so requests a full statement of the designation, relative rights, preferences and limitations of each class and series
of stock of the Corporation authorized to be issued, including the Series C Preferred Stock, in so far as the same shall have been prescribed
and the authority of the Board of Directors of the Corporation to designate and prescribe the relative rights, preferences and limitations
of other series. Such statement may be obtained from the Corporation at the Corporation’s principal executive offices, which, on
the Initial Issue Date of shares of the Series C Preferred Stock, were located at One Energy Plaza, Jackson, Michigan 49201.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers
the shares of the Series C Preferred Stock evidenced hereby to:
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(Insert assignee’s social security or taxpayer identification
number, if any)
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(Insert address and zip code of assignee)
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and irrevocably appoints:
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__________________________
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as agent to transfer the shares of the Series C Preferred Stock evidenced hereby on the books of the Transfer Agent and Registrar. The agent may substitute another to act for him or her.
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Date:
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Signature:
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(Sign exactly as your name appears on the other side
of this Certificate)
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Signature Guarantee:
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(Signature must be guaranteed by an “eligible guarantor
institution” that is a bank, stockbroker, savings and loan association or credit union meeting the requirements of the Transfer
Agent, which requirements include membership or participation in the Securities Transfer Agents Medallion Program (“STAMP”)
or such other “signature guarantee program” as may be determined by the Transfer Agent in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.)
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IN WITNESS WHEREOF, CMS ENERGY CORPORATION has
caused this Certificate of Designation to be signed by its Assistant Secretary on this 28th day of June, 2021.
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CMS ENERGY CORPORATION
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By:
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/s/ TERRY L. CHRISTIAN
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Name:
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Terry L. Christian
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Title:
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Assistant Secretary and authorized agent
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[Signature Page to Series C Certificate of Designation]
Exhibit 4.2
Execution
Version
DEPOSIT AGREEMENT
among
CMS Energy Corporation,
as Issuer
Equiniti Trust Company,
as Depositary,
and
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
Dated as of July 1, 2021
TABLE OF CONTENTS
Page
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Article
I
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DEFINED
TERMS
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3
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Section
1.1.
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Definitions
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3
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Article
II
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FORM
OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
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6
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Section
2.1.
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Form
and Transfer of Receipts
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6
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Section
2.2.
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Deposit
of Stock; Execution and Delivery of Receipts in Respect Thereof
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7
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Section
2.3.
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Registration
of Transfer of Receipts
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8
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Section
2.4.
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Split-ups
and Combinations of Receipts; Surrender of Receipts and Withdrawal of Stock
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8
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Section
2.5.
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Limitations
on Execution and Delivery, Transfer, Surrender and Exchange of Receipts
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9
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Section
2.6.
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Lost
Receipts, etc.
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10
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Section
2.7.
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Cancellation
and Destruction of Surrendered Receipts
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10
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Section
2.8.
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Redemption
of Stock
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10
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Section
2.9.
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Receipts
Issuable in Global Registered Form
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12
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Section
2.10.
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Bank
Accounts
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13
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Article
III
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CERTAIN
OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
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13
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Section
3.1.
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Filing
Proofs, Certificates and Other Information
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13
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Section
3.2.
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Payment
of Taxes or Other Governmental Charges
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14
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Section
3.3.
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Warranty
as to Stock
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14
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Section
3.4.
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Warranty
as to Receipts
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14
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Section
3.5.
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Corporate
Existence and Authority of the Depositary
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14
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Article
IV
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THE
DEPOSITED SECURITIES; NOTICES
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15
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Section
4.1.
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Cash
Distributions
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15
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Section
4.2.
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Distributions
Other than Cash, Rights, Preferences or Privileges
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15
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Section
4.3.
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Subscription
Rights, Preferences or Privileges
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16
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Section
4.4.
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Notice
of Dividends, etc.; Fixing Record Date for Holders of Receipts
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17
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Section
4.5.
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Voting
Rights
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17
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Section
4.6.
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Changes
Affecting Deposited Securities and Reclassifications, Recapitalizations, etc.
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18
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Section
4.7.
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Delivery
of Reports
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18
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Section
4.8.
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Lists
of Receipt Holders
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18
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Article
V
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THE
DEPOSITARY, THE DEPOSITARY’S AGENTS, THE REGISTRAR AND THE COMPANY
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19
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|
|
|
Section
5.1.
|
Appointment,
Maintenance of Offices, Agencies and Transfer Books by the Depositary; Registrar.
|
19
|
|
Section
5.2.
|
Prevention
of or Delay in Performance by the Depositary, the Depositary’s Agents, the Registrar or the Company
|
19
|
|
Section
5.3.
|
Obligations
of the Depositary, the Depositary’s Agents, the Registrar and the Company
|
20
|
|
Section
5.4.
|
Resignation
and Removal of the Depositary; Appointment of Successor Depositary
|
21
|
|
Section
5.5.
|
Corporate
Notices and Reports
|
22
|
|
Section
5.6.
|
Indemnification
|
22
|
|
Section
5.7.
|
Fees,
Charges and Expenses
|
24
|
|
Section
5.8.
|
Tax
Compliance
|
24
|
|
|
|
|
|
Article
VI
|
|
|
|
|
|
|
|
|
AMENDMENT
AND TERMINATION
|
25
|
|
|
|
|
|
Section
6.1.
|
Amendment
|
25
|
|
Section
6.2.
|
Termination
|
25
|
|
|
|
|
|
Article
VII
|
|
|
|
|
|
|
|
|
MISCELLANEOUS
|
26
|
|
|
|
|
|
Section
7.1.
|
Counterparts;
Electronic Signatures
|
26
|
|
Section
7.2.
|
Exclusive
Benefit of Parties
|
26
|
|
Section
7.3.
|
Invalidity
of Provisions
|
26
|
|
Section
7.4.
|
Notices
|
27
|
|
Section
7.5.
|
Depositary’s
Agents
|
28
|
|
Section
7.6.
|
Appointment
of Registrar in Respect of the Receipts
|
28
|
|
Section
7.7.
|
Holders
of Receipts Are Parties.
|
28
|
|
Section
7.8.
|
Governing
Law
|
28
|
|
Section
7.9.
|
Inspection
of Deposit Agreement
|
28
|
|
Section
7.10.
|
Headings
|
28
|
|
Section
7.11.
|
Confidentiality
|
29
|
|
Section
7.12.
|
Force
Majeure
|
29
|
|
Section
7.13.
|
Certificate
of Designation
|
29
|
|
|
|
|
|
Exhibit
A
|
Form
of Receipt
|
|
Exhibit B Certificate of Designation
DEPOSIT AGREEMENT, dated as of July 1, 2021, among
(i) CMS Energy Corporation, a Michigan corporation, (ii) Equiniti Trust Company, a limited liability trust company formed under the laws
of the State of New York, as Depositary and (iii) the holders from time to time of the Receipts described herein.
WHEREAS, it is desired to provide, as hereinafter
set forth in this Deposit Agreement, for the deposit of shares of 4.200% Cumulative Redeemable Perpetual Preferred Stock, Series C, of
the Company with the Depositary for the purposes set forth in this Deposit Agreement and for the issuance hereunder of Depositary Shares
representing a fractional interest in the Stock deposited and for the execution and delivery of Receipts evidencing Depositary Shares;
WHEREAS, the Receipts are to be substantially in
the form of Exhibit A attached hereto, with appropriate insertions, modifications and omissions, as hereinafter provided in this Deposit
Agreement; and
WHEREAS, the terms and conditions of the 4.200%
Cumulative Redeemable Perpetual Preferred Stock, Series C, of the Company are substantially set forth in the Certificate of Designation
attached hereto as Exhibit B;
NOW, THEREFORE, in consideration of the premises,
the parties hereto agree as follows:
Article
I
DEFINED TERMS
Section 1.1.
Definitions.
The following definitions shall for all purposes,
unless otherwise indicated, apply to the respective terms (in the singular and plural forms of such terms) used in this Deposit Agreement:
“Certificate of Designation”
shall mean the Certificate of Designation filed with the Michigan Department of Licensing and Regulatory Affairs, Bureau of Commercial
Services, establishing the Stock as a series of preferred stock of the Company, and setting forth the rights, preferences and privileges
of the Stock, and attached hereto as Exhibit B, and as such certificate may be amended or restated from time to time.
“Company” shall mean CMS Energy
Corporation, a Michigan corporation, and its successors.
“Deposit Agreement” shall mean
this Deposit Agreement, as the same may be amended, modified or supplemented from time to time in accordance with the terms hereof.
“Depositary” shall mean Equiniti
Trust Company, a limited liability trust company formed under the laws of the State of New York, and any successor as Depositary hereunder.
“Depositary Share Redemption Price”
shall have the meaning set forth in Section 2.8.
“Depositary Shares” shall mean
the security representing a 1/1,000th fractional interest in a share of the Stock, and the same proportionate interest in any and all
other property received by the Depositary in respect of such share of Stock and held under this Deposit Agreement, all as evidenced by
the Receipts issued hereunder. Subject to the terms of this Deposit Agreement, each owner of a Depositary Share is entitled, proportionately,
to all the rights, preferences and privileges of the Stock represented by such Depositary Share (including the dividend, voting, redemption
and liquidation rights contained in the Certificate of Designation).
“Depositary’s Agent” shall
mean an agent appointed by the Depositary pursuant to Section 7.5.
“Depositary’s Office”
shall mean the principal office of the Depositary, at which at any particular time its depositary receipt business in respect of matters
governed by this Deposit Agreement shall be administered.
“DTC” shall mean The Depository
Trust Company.
“Exchange Event” shall mean
with respect to any Global Registered Receipt:
(1) (A)
the Global Receipt Depository which is the holder of such Global Registered Receipt or Receipts notifies the Company that it is no longer
willing or able to properly discharge its responsibilities under any Letter of Representations or that it is no longer eligible or in
good standing under the Securities Exchange Act of 1934, as amended to serve as Global Receipt Depository or such Global Receipt Depository
ceases to be a “clearing agency” registered pursuant to the provisions of Section 17A of the Securities Exchange Act of 1934,
as amended, when it is required to be so registered, and (B) the Company has not appointed a qualified successor Global Receipt Depository
within ninety (90) calendar days after the Company received such notice, or
(2) the
Company in its sole discretion notifies the Depositary in writing that the Receipts or a portion thereof issued or issuable in the form
of one or more Global Registered Receipts shall no longer be represented by such Global Registered Receipt or Receipts.
“Funds” shall have the meaning
set forth in Section 2.10.
“Global Receipt Depository”
shall mean, with respect to any Receipt issued hereunder, DTC or such other entity designated as Global Receipt Depository by the Company
in, or pursuant to, this Deposit Agreement, which entity must be, to the extent required by any applicable law or regulation, a clearing
agency registered under the Securities Exchange Act of 1934, as amended.
“Global Registered Receipts”
shall mean a global registered Receipt registered in the name of a nominee of the Global Receipt Depository.
“Indemnified Party” shall mean
a party seeking indemnification under this Deposit Agreement.
“Indemnifying Party” shall mean
a party receiving notification of an indemnification claim from an Indemnified Party.
“Letter of Representations”
shall mean any applicable agreement between the Company and a Global Receipt Depository with respect to such Global Receipt Depository’s
rights and obligations with respect to any Global Registered Receipts, as the same may be amended, supplemented, restated or otherwise
modified from time to time and any successor agreement thereto.
“Receipt” shall mean a receipt
issued hereunder to evidence one or more Depositary Shares held of record by the record holder of such Depositary Shares, whether in definitive
or temporary form, substantially in the form set forth as Exhibit A.
“record holder” or “holder”
as applied to a Receipt shall mean the person in whose name such Receipt is registered on the books of the Depositary for such purpose.
“Redemption Date” shall have
the meaning set forth in Section 2.8.
“Redemption Price” shall mean
the “redemption price” as determined in accordance with Section 5 of the Certificate of Designation.
“Registrar” shall mean the Depositary
or such other successor bank or trust company which shall be appointed by the Company to register ownership and transfers of Receipts
or the Depositary Shares, as the case may be, as herein provided and if a successor Registrar shall be so appointed, references herein
to “the books” of or maintained by the Depositary shall be deemed, as applicable, to refer as well to the register maintained
by such Registrar for such purpose.
“Securities Act” shall mean
the Securities Act of 1933, as amended.
“Signature Guarantee” shall
have the meaning set forth in Section 2.3.
“Stock” shall mean shares of
the Company’s 4.200% Cumulative Redeemable Perpetual Preferred Stock, Series C, $0.01 par value per share, $25,000 liquidation preference
per share, designated and described in the Certificate of Designation.
Article
II
FORM OF RECEIPTS, DEPOSIT OF STOCK, EXECUTION AND DELIVERY, TRANSFER, SURRENDER AND REDEMPTION OF RECEIPTS
Section 2.1.
Form and Transfer of Receipts.
Definitive Receipts shall be substantially in the
form set forth in Exhibit A attached to this Deposit Agreement, in each case with appropriate insertions, modifications and omissions,
as hereinafter provided (but which do not affect the rights, duties, liabilities or responsibilities of the Depositary). Pending the preparation
of definitive Receipts, the Depositary, upon the written order of the Company, delivered in compliance with Section 2.2, shall
execute and deliver temporary Receipts which may be printed, lithographed, typewritten or otherwise substantially of the same tenor of
the definitive Receipts in lieu of which they are issued and with such appropriate insertions, omissions, substitutions and other variations
as the persons executing such Receipts may determine, as evidenced by their execution of such Receipts. If temporary Receipts are issued,
the Company and the Depositary will cause definitive Receipts to be prepared without unreasonable delay. After the preparation of definitive
Receipts, the temporary Receipts shall be exchangeable for definitive Receipts upon surrender of the temporary Receipts at an office described
in the penultimate paragraph of Section 2.2, without charge to the holder. Upon surrender for cancellation of any one or more temporary
Receipts, the Depositary shall execute and deliver in exchange therefor definitive Receipts representing the same number of Depositary
Shares as represented by the surrendered temporary Receipt or Receipts registered in the name (and only in the name) of the holder of
the temporary Receipt; provided, however, the Depositary has been provided with all necessary information that it may reasonably request
in order to execute and deliver such definitive Receipt or Receipts. Such exchange shall be made at the Company’s expense and without
any charge therefor. Until so exchanged, the temporary Receipts shall in all respects be entitled to the same benefits under this Deposit
Agreement as definitive Receipts.
Receipts shall be executed by the Depositary by
the manual or facsimile signature of a duly authorized officer of the Depositary. No Receipt shall be entitled to any benefits under this
Deposit Agreement or be valid or obligatory for any purpose unless it shall have been executed by manual or facsimile signature of a duly
authorized officer of the Depositary or, if a Registrar for the Receipts (other than the Depositary) shall have been appointed, by manual
or facsimile signature of a duly authorized officer of the Depositary and countersigned by manual or facsimile signature of a duly authorized
officer of such Registrar. The Depositary shall record on its books each Receipt so signed and delivered as hereinafter provided.
Receipts shall be in denominations of any number
of whole Depositary Shares. All Receipts shall be dated the date of their issuance.
Receipts may be endorsed with or have incorporated
in the text thereof such legends or recitals or changes not inconsistent with the provisions of this Deposit Agreement all as may be required
by the Depositary and approved by the Company or required to comply with any applicable law or any regulation thereunder or with the rules
and regulations of any securities exchange upon which the Stock, the Depositary Shares or the Receipts may be listed or to conform with
any usage with respect thereto, or to indicate any special limitations or restrictions to which any particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt
which is properly endorsed or accompanied by a properly executed instrument of transfer shall be transferable by delivery with the same
effect as in the case of a negotiable instrument; provided, however, that until transfer of any particular Receipt shall be registered
on the books of the Depositary as provided in Section 2.3, the Depositary may, notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for the purpose of determining the person entitled to distributions of dividends
or other distributions or to any notice provided for in this Deposit Agreement and for all other purposes.
Section 2.2.
Deposit of Stock; Execution and Delivery of Receipts in Respect Thereof.
Subject to the terms and conditions of this Deposit
Agreement, the Company may from time to time deposit shares of the Stock under this Deposit Agreement by delivery to the Depositary or
its nominee by book entry on the books and records of the Company’s transfer agent, or otherwise, of (i) a certificate or certificates
for the Stock to be deposited, properly endorsed or accompanied, if required by the Depositary, by a duly executed instrument of transfer
or endorsement or (ii) an instruction letter from the Company authorizing the Depositary to register such shares of the Stock in book-entry
form, each in form reasonably satisfactory to the Depositary, together with all such certifications as may be required by the Depositary
in accordance with the provisions of this Deposit Agreement and all other information required to be set forth, and together with a written
order of the Company directing the Depositary to execute and deliver to, or upon the written order of, the person or persons stated in
such order a Receipt or Receipts evidencing in the aggregate the number of Depositary Shares representing such deposited Stock. Concurrently
with the execution of this Deposit Agreement, the Company is delivering 9,200 shares of Stock to the Depositary and the Depositary hereby
acknowledges receipt of such 9,200 shares of Stock and all related documentation and information required to be delivered to the Depositary
under this Section 2.2 and agrees to hold such deposited Stock in accordance with this Deposit Agreement.
Deposited Stock shall be held by the Depositary
or its nominee in an account to be established by the Depositary at the Depositary’s Office or at such other place or places, as
the Depositary shall determine. The Company hereby appoints the Depositary as registrar for the Stock and the Depositary hereby accepts
such appointment and, as such, will reflect changes in the number of shares of deposited Stock held by it by notation, book-entry or other
appropriate method. The Depositary shall not lend any Stock deposited hereunder.
Upon receipt by the Depositary of (i) a certificate
or certificates for Stock deposited in accordance with the provisions of this Section or (ii) an instruction letter from the Company in
accordance with the provisions of this Section, together with the other documents required as above specified, and upon recordation of
the Stock on the books of the Company (or its duly appointed transfer agent) in the name of the Depositary or its nominee, the Depositary,
subject to the terms and conditions of this Deposit Agreement, shall execute and deliver to or upon the written request of the person
or persons named in the written order delivered to the Depositary referred to in the first paragraph of this Section, a Receipt or Receipts
evidencing in the aggregate the number of Depositary Shares representing the Stock so deposited and registered in such name or names as
may be requested by such person or persons. The Depositary shall execute and deliver such Receipt or Receipts at the Depositary’s
Office or such other offices, if any, as the Depositary may designate. Delivery at other offices shall be at the risk and expense of the
person requesting such delivery.
Section 2.3.
Registration of Transfer of Receipts.
Subject to the terms and conditions of this Deposit
Agreement, the Depositary shall register on its books from time to time transfers of Receipts upon any surrender thereof by the holder
in person or by duly authorized attorney, properly endorsed or accompanied by a properly executed instrument of transfer which shall be
affixed with the signature guarantee of a guarantor institution which is a participant in a signature medallion guarantee program approved
by the Securities Transfer Association (a “Signature Guarantee”), together with any evidence of the payment of any taxes,
assessments or charges as may be required by law. Thereupon, the Depositary shall execute a new Receipt or Receipts evidencing the same
aggregate number of Depositary Shares as those evidenced by the Receipt or Receipts surrendered and deliver such new Receipt or Receipts
to or upon the order of the person entitled thereto.
The Depositary shall not be required (a) to issue,
transfer or exchange any Receipts for a period beginning at the opening of business fifteen (15) days next preceding any selection of
Depositary Shares and Stock to be redeemed and ending at the close of business on the day of the mailing of notice of redemption, or (b)
to transfer or exchange for another Receipt any Receipt called or being called for redemption in whole or in part except as provided in
Section 2.8.
Section 2.4.
Split-ups and Combinations of Receipts; Surrender of Receipts and Withdrawal of Stock.
Upon surrender of a Receipt or Receipts at the
Depositary’s Office or at such other offices as it may designate for the purpose of effecting a split-up or combination of such
Receipt or Receipts, and subject to the terms and conditions of this Deposit Agreement, the Depositary shall execute a new Receipt or
Receipts in the authorized denomination or denominations requested, evidencing the aggregate number of Depositary Shares evidenced by
the Receipt or Receipts surrendered, and shall deliver such new Receipt or Receipts to or upon the order of the holder of the Receipt
or Receipts so surrendered.
Any holder of a Receipt or Receipts may (unless
the related Depositary Shares have previously been called for redemption) withdraw the number of whole shares of Stock and all money and
other property, if any, represented thereby by surrendering such Receipt or Receipts, at the Depositary’s Office or at such other
offices as the Depositary may designate for such withdrawals. Thereafter, without unreasonable delay, the Depositary shall deliver to
such holder, or to the person or persons designated by such holder as hereinafter provided, the number of whole shares of Stock and all
money and other property, if any, represented by the Receipt or Receipts so surrendered for withdrawal, but holders of such whole shares
of Stock will not thereafter be entitled to deposit such Stock hereunder or to receive a Receipt evidencing Depositary Shares therefor.
If a Receipt delivered by the holder to the Depositary in connection with such withdrawal shall evidence a number of Depositary Shares
in excess of the number of Depositary Shares representing the number of whole shares of Stock to be so withdrawn, the Depositary shall
at the same time, in addition to such number of whole shares of Stock and such money and other property, if any, to be so withdrawn, deliver
to such holder, or subject to Section 2.3 upon such holder’s order, a new Receipt evidencing such excess number of Depositary Shares.
Except as provided in Section 6.2, in no event
will fractional shares of Stock (or any cash payment in lieu thereof) be delivered by the Depositary. Delivery of the Stock and money
and other property, if any, being withdrawn may be made by the delivery of such certificates, documents of title and other instruments
as the Depositary may deem appropriate.
If the Stock and the money and other property,
if any, being withdrawn are to be delivered to a person or persons other than the record holder of the Receipt or Receipts being surrendered
for withdrawal of Stock, such holder shall execute and deliver to the Depositary a written order so directing the Depositary and the Depositary
may require that the Receipt or Receipts surrendered by such holder for withdrawal of such shares of Stock be properly endorsed in blank
or accompanied by a properly executed instrument of transfer in blank.
Delivery of the Stock and the money and other property,
if any, represented by Receipts surrendered for withdrawal shall be made by the Depositary at the Depositary’s Office, except that,
at the request, risk and expense of the holder surrendering such Receipt or Receipts and for the account of the holder thereof, such delivery
may be made at such other place as may be designated by such holder.
Section 2.5.
Limitations on Execution and Delivery, Transfer, Surrender and Exchange of Receipts.
As a condition precedent to the execution and delivery,
registration of transfer, split-up, combination, surrender or exchange of any Receipt, the Depositary, any of the Depositary’s Agents
or the Company may require payment to it of a sum sufficient for the payment (or, in the event that the Depositary or the Company shall
have made such payment, the reimbursement to it) of any charges or expenses payable by the holder of a Receipt pursuant to Section 5.7,
may require the production of evidence satisfactory to it as to the identity and genuineness of any signature (which evidence will include
a Signature Guarantee), and any other reasonable evidence of authority that may be required by the Depositary and may also require compliance
with such regulations, if any, as the Depositary or the Company may establish consistent with the provisions of this Deposit Agreement,
the requirements of any securities exchange on which the deposited Stock, the Depositary Shares or the Receipts may be included for quotation
or listed and/or applicable law.
The deposit of Stock may be refused, the delivery
of Receipts against Stock may be suspended, the registration of transfer of Receipts may be refused and the registration of transfer,
surrender or exchange of outstanding Receipts may be suspended (i) during any period when the register of stockholders of the Company
is closed or (ii) if any such action is deemed necessary or advisable by the Depositary, any of the Depositary’s Agents or the Company
at any time or from time to time because of any requirement of law or of any government or governmental body or commission or under any
provision of this Deposit Agreement.
Section 2.6.
Lost Receipts, etc.
In case any Receipt shall be mutilated, destroyed,
lost or stolen, the Depositary in its discretion may execute and deliver a Receipt of like form and tenor in exchange and substitution
for such mutilated Receipt, or in lieu of and in substitution for such destroyed, lost or stolen Receipt, upon (i) the filing by the holder
thereof with the Depositary of evidence satisfactory to the Depositary of such destruction or loss or theft of such Receipt, of the authenticity
thereof and of such holder’s ownership thereof, (ii) the holder thereof furnishing the Depositary with an affidavit and an open
penalty surety bond reasonably satisfactory to the Depositary and (iii) the payment of any reasonable expense (including reasonable fees,
charges and expenses of the Depositary). Applicants for substitute receipts shall also comply with such other reasonable regulations and
pay such other reasonable charges as the Depositary may prescribe and as required by Section 8-405 of the Uniform Commercial Code in effect
in the State of New York.
Section 2.7.
Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary or any
Depositary’s Agent shall be cancelled by the Depositary. Except as prohibited by applicable law or regulation, the Depositary is
authorized and directed to destroy all Receipts so cancelled.
Section 2.8.
Redemption of Stock.
Whenever the Company shall be permitted and shall
elect to redeem shares of Stock in accordance with the provisions of the Certificate of Designation (including on account of a Ratings
Event, as described therein), it shall (unless otherwise agreed to in writing with the Depositary) give or cause to be given to the Depositary,
not less than 30 days and not more than 60 days prior to the Redemption Date (as defined below), notice of the date of such proposed redemption
of Stock and of the number of such shares of Stock held by the Depositary to be so redeemed and the Depositary Share Redemption Price,
which notice shall be accompanied by a certificate from the Company stating that such redemption of Stock is in accordance with the provisions
of the Certificate of Designation. On the date of such redemption, provided that the Company shall then have paid or caused to be paid
in full to the Depositary the Redemption Price per share of Stock to be redeemed, in accordance with and as required by the provisions
of the Certificate of Designation, the Depositary shall redeem the number of Depositary Shares representing such Stock. The Depositary
shall mail notice of the Company’s redemption of Stock and the proposed simultaneous redemption of the number of Depositary Shares
representing the Stock to be redeemed by first-class mail, postage prepaid, at the respective last addresses as they appear on the records
of the Depositary, or transmit in accordance with the applicable procedures of any Global Receipt Depository or by such other method approved
by the Depositary, in its reasonable discretion subject to Section 2.9 below, in either case not less than 30 days and not more than 60
days prior to the date fixed for redemption of such Stock and Depositary Shares (the “Redemption Date”), to the record holders
of the Receipts evidencing the Depositary Shares to be so redeemed at the addresses of such holders as they appear on the records of the
Depositary; but neither failure to mail or transmit any such notice of redemption of Depositary Shares to one or more such holders nor
any defect in any notice of redemption of Depositary Shares to one or more such holders shall affect the sufficiency of the proceedings
for redemption as to the other holders. Each such notice shall be prepared by the Company and shall state: (i) the Redemption Date; (ii)
the number of Depositary Shares to be redeemed and, if less than all the Depositary Shares held by any such holder are to be redeemed,
the number of such Depositary Shares held by such holder to be so redeemed; (iii) the Depositary Share Redemption Price; (iv) the place
or places where Receipts evidencing such Depositary Shares are to be surrendered for payment of the Depositary Share Redemption Price
and (v) that dividends on such shares of Stock represented by the Depositary Shares to be redeemed will cease to accrue on such Redemption
Date. In case less than all the outstanding Depositary Shares are to be redeemed, the Depositary Shares to be so redeemed shall be selected
either pro rata or in such other manner as may be determined by the Depositary to be fair and equitable and provided that such methodology
is consistent with any applicable stock exchange rules. In any such case, the Depositary Shares shall only be redeemed in increments of
1,000 Depositary Shares and any integral multiple thereof.
Notice having been mailed or transmitted by the
Depositary as aforesaid, from and after the Redemption Date (unless the Company shall have failed to provide the funds necessary to redeem
the Stock evidenced by the Depositary Shares called for redemption) (i) all shares of Stock called for redemption shall cease to be outstanding
and any rights with respect to such shares shall cease and terminate (except for (1) the right to receive the Redemption Price without
interest and (2) if the Redemption Date occurs subsequent to a record date fixed pursuant to Section 4.4 and on or prior to the next succeeding
dividend payment date, the right to receive accumulated and unpaid dividends in accordance with the proviso at the end of this sentence),
(ii) the Depositary Shares being redeemed from such proceeds shall be deemed no longer to be outstanding and all rights of the holders
of Receipts evidencing such Depositary Shares shall, to the extent of such Depositary Shares, cease and terminate (except (1) the right
to receive the Depositary Share Redemption Price without interest and (2) if the Redemption Date occurs subsequent to a record date fixed
pursuant to Section 4.4 and on or prior to the next succeeding dividend payment date, the right to receive accumulated and unpaid dividends
in accordance with the proviso at the end of this sentence), and (iii) upon surrender in accordance with such redemption notice of the
Receipts evidencing any such Depositary Shares called for redemption (properly endorsed or assigned for transfer, if the Depositary or
applicable law shall so require), such Depositary Shares shall be redeemed by the Depositary at a redemption price per Depositary Share
equal to 1/1,000th of the Redemption Price per share of Stock so redeemed plus all money and other property, if any, represented
by such Depositary Shares, including dividends which on the Redemption Date have accumulated (whether or not declared) on the shares of
Stock to be so redeemed and have not theretofore been paid, in all cases without interest on such amounts (the “Depositary Share
Redemption Price”); provided, however, that if a Redemption Date occurs subsequent to a record date fixed pursuant to Section 4.4
and on or prior to the next succeeding dividend payment date, then the full amount of accumulated and unpaid dividends (whether or not
declared) on such shares of Stock to, but excluding, such dividend payment date will be paid on such dividend payment date to the persons
who were the holders of record of such shares at the close of business on such record date and such accumulated and unpaid dividends will
not be paid or required to be paid on the Redemption Date and will not constitute a part of the Depositary Share Redemption Price. Any
funds deposited by the Company with the Depositary for any Depositary Shares that the holders thereof fail to redeem will be returned
to the Company after a period of one year from the date such funds are so deposited.
If fewer than all of the Depositary Shares evidenced
by a Receipt are called for redemption, the Depositary will deliver to the holder of such Receipt upon its surrender to the Depositary,
together with the redemption payment, a new Receipt evidencing the Depositary Shares evidenced by such prior Receipt and not called for
redemption.
Section 2.9.
Receipts Issuable in Global Registered Form.
If the Company shall determine in a writing delivered
to the Depositary that the Receipts are to be issued in whole or in part in the form of one or more Global Registered Receipts, then the
Depositary shall, in accordance with the other provisions of this Deposit Agreement, execute and deliver one or more Global Registered
Receipts evidencing such Receipts, which (i) shall represent, and shall be denominated in an amount equal to the number of Depositary
Shares evidenced by, the Receipts to be represented by such Global Registered Receipt or Receipts, and (ii) shall be registered in the
name of the Global Receipt Depository therefor or its nominee.
Notwithstanding any other provision of this Deposit
Agreement to the contrary, unless otherwise provided in the Global Registered Receipt, a Global Registered Receipt may only be transferred
in whole and only by the applicable Global Receipt Depository for such Global Registered Receipt to a nominee of such Global Receipt Depository,
or by a nominee of such Global Receipt Depository to such Global Receipt Depository or another nominee of such Global Receipt Depository,
or by such Global Receipt Depository or any such nominee to a successor Global Receipt Depository for such Global Registered Receipt selected
or approved by the Company or to a nominee of such successor Global Receipt Depository. Except as provided below, owners solely of beneficial
interests in a Global Registered Receipt shall not be entitled to receive physical delivery of the Receipts represented by such Global
Registered Receipt. Neither any such beneficial owner nor any direct or indirect participant of a Global Receipt Depository shall have
any rights or obligations under this Deposit Agreement with respect to any Global Registered Receipt held on their behalf by a Global
Receipt Depository and such Global Receipt Depository may be treated by the Company, the Depositary and any director, officer, employee
or agent of the Company or the Depositary as the holder of such Global Registered Receipt for all purposes whatsoever.
Unless and until definitive Receipts are delivered
to the owners of the beneficial interests in a Global Registered Receipt, (1) the applicable Global Receipt Depository will make book-entry
transfers among its participants and receive and transmit all payments and distributions in respect of the Global Registered Receipts
to such participants, in each case, in accordance with its applicable procedures and arrangements, and (2) whenever any notice, payment
or other communication to the holders of Global Registered Receipts is required under this Deposit Agreement, the Company and the Depositary
shall give all such notices, payments and communications specified herein to be given to such holders to the applicable Global Receipt
Depository.
If an Exchange Event has occurred with respect
to any Global Registered Receipt, then, in any such event, the Depositary shall, upon receipt of a written order from the Company for
the execution and delivery of individual definitive registered Receipts in exchange for such Global Registered Receipt, execute and deliver
individual definitive registered Receipts, in authorized denominations and of like tenor and terms in an aggregate number equal to the
beneficial interest represented by such Global Registered Receipt surrendered in exchange for such Global Registered Receipt.
Definitive registered Receipts issued in exchange
for a Global Registered Receipt pursuant to this Section shall be registered in such names and in such authorized denominations as the
Global Receipt Depository for such Global Registered Receipt, pursuant to instructions from its participants, shall instruct the Depositary
in writing. The Depositary shall deliver such Receipts to the persons in whose names such Receipts are so registered.
Notwithstanding anything to the contrary in this
Deposit Agreement, should the Company determine that the Receipts should be issued as a Global Registered Receipt, or that a Global Registered
Receipt should be issued in exchange for definitive registered Receipts, the parties hereto shall comply with the terms of each Letter
of Representations, if applicable.
Section 2.10.
Bank Accounts.
All funds received by the Depositary under this
Agreement that are to be distributed or applied by the Depositary in the performance of services described herein (the “Funds”)
shall be held by the Depositary as agent for the Company and deposited in one or more bank accounts to be maintained by the Depositary
in its name as agent for the Company. Until paid pursuant to this Agreement, the Depositary will hold or invest the Funds solely as directed
by the Company in: (i) obligations of, or guaranteed by, the United States of America, (ii) commercial paper obligations rated A-1 or
P-1 or better by S&P Global Ratings or Moody’s Investors Service, respectively, (iii) money market funds that comply with Rule
2a-7 under the Investment Company Act of 1940, or (iv) demand deposit accounts, short term certificates of deposit, bank repurchase agreements
or bankers’ acceptances, of commercial banks with Tier 1 capital exceeding $1 billion or with an average rating above investment
grade by S&P Global Ratings (LT Local Issuer Credit Rating), Moody’s Investors Service (Long Term Rating) and Fitch Ratings,
Inc. (LT Issuer Default Rating) (each as reported by Bloomberg Finance L.P.), in each case pursuant to the Company’s written instructions.
The Depositary shall have no responsibility or liability for any diminution of the Funds that may result from any deposit or investment
made by the Depositary in accordance with this paragraph, except for any losses resulting from a default by any bank, financial institution
or other third party. The Depositary may from time to time receive interest, dividends or other earnings in connection with such deposits
or investments. The Depositary shall be obligated to pay such interest, dividends or earnings to the Company.
Article
III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
Section 3.1.
Filing Proofs, Certificates and Other Information.
Any holder of a Receipt may be required from time
to time to file such proof of residence, or other matters or other information, to execute such certificates and to make such representations
and warranties as the Depositary or the Company may reasonably deem necessary or proper. The Depositary or the Company may withhold the
delivery, or delay the registration of transfer or exchange or redemption, of any Receipt or the withdrawal of the Stock represented by
the Depositary Shares evidenced by any Receipt or the distribution of any dividend or other distribution or the sale of any rights or
of the proceeds thereof until such proof or other information is filed or such certificates are executed or such representations and warranties
are made.
Section 3.2.
Payment of Taxes or Other Governmental Charges.
Holders of Receipts shall be obligated to make
payments to the Depositary of certain charges and expenses, as provided in Section 5.7. Registration of transfer of any Receipt or any
withdrawal of Stock and all money or other property, if any, represented by the Depositary Shares evidenced by such Receipt may be refused
until any such payment due is made, and any dividends or other distributions may be withheld or any part of or all the Stock or other
property represented by the Depositary Shares evidenced by such Receipt and not theretofore sold may be sold for the account of the holder
thereof (after attempting by reasonable means to notify such holder prior to such sale), and such dividends or other distributions or
the proceeds of any such sale may be applied to any payment of such charges or expenses, the holder of such Receipt remaining liable for
any deficiency.
Section 3.3.
Warranty as to Stock.
The Company hereby represents and warrants that
the Stock, when issued, will be duly authorized, validly issued, fully paid and nonassessable. Such representation and warranty shall
survive the deposit of the Stock and the issuance of Receipts.
Section 3.4.
Warranty as to Receipts.
The Company hereby represents and warrants that
the Receipts, when issued, will represent legal and valid interests in the Depositary Shares and each Depositary Share will represent
a legal and valid 1/1,000th fractional interest in a share of Stock represented by such Depositary Share. Such representation and warranty
shall survive the deposit of the Stock and the issuance of Receipts.
Section 3.5.
Corporate Existence and Authority of the Depositary.
The Depositary hereby represents and warrants that
it: (i) has been duly incorporated and is validly existing in good standing under the laws of the jurisdiction of its formation; (ii)
has full power and authority and possesses all governmental or other franchises, licenses, permits, authorizations and approvals necessary
to enable it to own, lease or otherwise hold its properties and assets and to carry on its business as presently conducted; (iii) has
been duly qualified as a foreign entity for the transaction of business and is in good standing under the laws of each other jurisdiction
in which it owns or leases properties or conducts any business so as to require such qualification, or is subject to no material liability
or disability by reason of the failure to be so qualified in any such jurisdiction; and (iv) is a bank or trust company having its principal
office in the United States of America and having a combined capital and surplus, along with its affiliates, of at least $50,000,000.
The Depositary hereby agrees to promptly inform the Company in the event that any of the statements in the foregoing sentence cease to
be true and complete in all material respects.
This Deposit Agreement has been duly authorized,
executed and delivered by the Depositary and constitutes a legal, valid and binding obligation of the Depositary, enforceable against
the Depositary in accordance with its terms and this Deposit Agreement will be maintained continuously as part of the Depositary’s
official records, in accordance with law and its records management policy. The Depositary hereby agrees to perform its obligations under
this Deposit Agreement with the diligent care of a professional provider of such services, in a timely manner and in conformance with
all applicable laws, rules and regulations.
Article
IV
THE DEPOSITED SECURITIES; NOTICES
Section 4.1.
Cash Distributions.
Whenever the Depositary shall receive any cash
dividend or other cash distribution on Stock, including any cash received upon redemption of any Stock, the Depositary shall, subject
to Sections 3.1 and 3.2, distribute to record holders of Receipts on the record date fixed pursuant to Section 4.4 such amounts of such
dividend or distribution as are, as nearly as practicable, in proportion to the respective numbers of Depositary Shares evidenced by the
Receipts held by such holders; provided, however, that in case the Company or the Depositary shall be required to withhold and shall withhold
from any cash dividend or other cash distribution in respect of the Stock an amount on account of taxes or other governmental charges
or as otherwise required by law, regulation or court process, the amount made available for distribution or distributed in respect of
Depositary Shares shall be reduced accordingly. The Depositary shall distribute or make available for distribution, as the case may be,
only such amount, however, as can be distributed without attributing to any holder of Depositary Shares a fraction of one cent, with any
such fractional amounts to be rounded down to the nearest whole cent and so distributed to the record holders entitled thereto and any
balance not so distributable shall be held by the Depositary (without liability for interest thereon) and shall be added to and be treated
as part of the next sum received by the Depositary for distribution to record holders of Receipts then outstanding. Each holder of a Receipt
shall provide the Depositary with its certified tax identification number on a properly completed Form W-8 or W-9, as may be applicable.
Each holder of a Receipt acknowledges that, in the event of non-compliance with the preceding sentence, the Internal Revenue Code of 1986,
as amended, may require withholding by the Depositary of a portion of any of the distributions to be made hereunder.
Section 4.2.
Distributions Other than Cash, Rights, Preferences or Privileges.
Whenever the Depositary shall receive any distribution
other than cash, rights, preferences or privileges upon Stock, the Depositary shall, subject to Sections 3.1 and 3.2, distribute to record
holders of Receipts on the record date fixed pursuant to Section 4.4 such amounts of the securities or property received by it as are,
as nearly as practicable, in proportion to the respective numbers of Depositary Shares evidenced by such Receipts held by such holders,
in any manner that the Depositary may deem equitable and practicable for accomplishing such distribution. If in the opinion of the Depositary,
after consultation with the Company, such distribution cannot be made proportionately among such record holders, or if for any other reason
(including any requirement that the Company or the Depositary withhold an amount on account of taxes or other governmental charges) the
Depositary deems, after consultation with the Company, such distribution not to be feasible, the Depositary may, with the approval of
the Company, adopt such method as it deems equitable and practicable for the purpose of effecting such distribution, including the sale
(at public or private sale) of the securities or property thus received, or any part thereof, in a commercially reasonable manner. The
net proceeds of any such sale shall, subject to Sections 3.1 and 3.2, be distributed or made available for distribution, as the case may
be, by the Depositary to record holders of Receipts as provided by Section 4.1 in the case of a distribution received in cash. The Company
shall not make any distribution of such securities or property to the Depositary and the Depositary shall not make any distribution of
such securities or property to the holders of Receipts unless the Company shall have provided an opinion of counsel stating that such
securities or property have been registered under the Securities Act or do not need to be registered in connection with such distributions.
Section 4.3.
Subscription Rights, Preferences or Privileges.
If the Company shall at any time offer or cause
to be offered to the persons in whose names Stock is recorded on the books of the Company any rights, preferences or privileges to subscribe
for or to purchase any securities or any rights, preferences or privileges of any other nature, such rights, preferences or privileges
shall in each such instance be made available by the Depositary to the record holders of Receipts in such manner as the Company shall
instruct and the Depositary shall agree, subject to the applicable rules of the Global Receipt Depository, either by the issue to such
record holders of warrants representing such rights, preferences or privileges or by such other method as may be approved by the Company
in its discretion with the acknowledgement of the Depositary; provided, however, that (i) if at the time of issue or offer of any
such rights, preferences or privileges the Company determines upon advice of its legal counsel that it is not lawful or not feasible to
make such rights, preferences or privileges available to holders of Receipts by the issue of warrants or otherwise, or (ii) if and to
the extent so instructed by holders of Receipts who do not desire to exercise such rights, preferences or privileges, then the Depositary
shall, if so directed by the Company, and if applicable laws or the terms of such rights, preferences or privileges permit such transfer,
sell such rights, preferences or privileges at public or private sale, at such place or places and upon such terms as it may deem proper.
The net proceeds of any such sale shall, subject to Sections 3.1 and 3.2, be distributed by the Depositary to the record holders of Receipts
entitled thereto as provided by Section 4.1 in the case of a distribution received in cash.
The Company shall notify the Depositary whether
registration under the Securities Act of the securities to which any rights, preferences or privileges relate is required in order for
holders of Receipts to be offered or sold the securities to which such rights, preferences or privileges relate, and the Company agrees
with the Depositary that it will file promptly a registration statement pursuant to the Securities Act with respect to such rights, preferences
or privileges and securities and use its best efforts and take all steps available to it to cause such registration statement to become
effective sufficiently in advance of the expiration of such rights, preferences or privileges to enable such holders to exercise such
rights, preferences or privileges. In no event shall the Depositary make available to the holders of Receipts any right, preference or
privilege to subscribe for or to purchase any securities unless and until such registration statement shall have become effective, or
the Company shall have provided to the Depositary an opinion of counsel to the effect that the offering and sale of such securities to
such holders are exempt from registration under the provisions of the Securities Act.
The Company shall notify the Depositary whether
any other action under the laws of any jurisdiction or any governmental or administrative authorization, consent or permit is required
in order for such rights, preferences or privileges to be made available to holders of Receipts, and the Company agrees with the Depositary
that the Company will use its reasonable best efforts to take such action or obtain such authorization, consent or permit sufficiently
in advance of the expiration of such rights, preferences or privileges to enable such holders to exercise such rights, preferences or
privileges.
Section 4.4.
Notice of Dividends, etc.; Fixing Record Date for Holders of Receipts.
Whenever any cash dividend or other cash distribution
shall become payable or any distribution other than cash shall be made, or if rights, preferences or privileges shall at any time be offered,
with respect to Stock, or whenever the Depositary shall receive notice of any meeting at which holders of Stock are entitled to vote or
of which holders of Stock are entitled to notice, or whenever the Depositary and the Company shall decide it is appropriate, the Depositary
shall in each such instance fix a record date (which shall be the same date as the record date fixed by the Company with respect to, or
otherwise in accordance with the terms of, the Stock, as identified in a written notice to the Depositary of such record date) for the
determination of the holders of Receipts who shall be entitled to receive such dividend, distribution, rights, preferences or privileges
or the net proceeds of the sale thereof, or to give instructions for the exercise of voting rights at any such meeting, or who shall be
entitled to notice of such meeting or for any other appropriate reasons.
Section 4.5.
Voting Rights.
Subject to the provisions of the Certificate of
Designation, upon receipt of notice of any meeting at which the holders of Stock are entitled to vote, the Depositary shall, as soon as
practicable thereafter, mail or transmit by such other method approved by the Company, in its reasonable discretion, to the record holders
of Receipts, as determined on the record date fixed pursuant to Section 4.4, a notice prepared by the Company which shall contain (i)
such information as is contained in such notice of meeting and (ii) a statement that the holders may, subject to any applicable restrictions,
instruct the Depositary as to the exercise of the voting rights pertaining to the amount of Stock represented by their respective Depositary
Shares (including an express indication that instructions may be given to the Depositary to give a discretionary proxy to a person designated
by the Company) and a brief statement as to the manner in which such instructions may be given. Upon the written request of the holders
of Receipts on the relevant record date, the Depositary shall to the extent possible vote or cause to be voted, in accordance with the
instructions set forth in such requests, the maximum number of whole shares of Stock represented by the Depositary Shares evidenced by
all Receipts as to which any particular voting instructions are received. To the extent any such instructions request the voting of a
fractional interest of a deposited Stock, the Depositary shall aggregate such interest with all other fractional interests resulting from
requests with the same voting instructions and shall vote the number of whole votes resulting from such aggregation in accordance with
the instructions received in such requests. The Company hereby agrees to take all reasonable action which may be deemed necessary by the
Depositary in order to enable the Depositary to vote such Stock or cause such Stock to be voted. In the absence of specific instructions
from holders of Receipts, the Depositary will vote, to the extent permitted by the rules of the New York Stock Exchange, the Stock represented
by the Depositary Shares evidenced by the Receipts of such holders proportionately with votes cast pursuant to instructions received from
the other holders.
Section 4.6.
Changes Affecting Deposited Securities and Reclassifications, Recapitalizations, etc.
Upon any change in liquidation preference, par
or stated value, split-up, combination or any other reclassification of the Stock, subject to the Certificate of Designation, or upon
any recapitalization, reorganization, merger or consolidation affecting the Company or to which it is a party, the Depositary shall, upon
the written instructions of the Company setting forth any adjustments, (i) make such adjustments as are certified by the Company in the
fraction of an interest represented by one Depositary Share in one share of Stock and in the ratio of the Depositary Share Redemption
Price to the Redemption Price, in each case as may be necessary fully to reflect the effects of such change in liquidation preference,
par or stated value, split-up, combination or other reclassification of Stock, or of such recapitalization, reorganization, merger or
consolidation and (ii) treat any securities which shall be received by the Depositary in exchange for or upon conversion of or in respect
of the Stock as new deposited securities so received in exchange for or upon conversion or in respect of such Stock. In any such case
the Depositary may in its discretion, with the approval of the Company, execute and deliver additional Receipts or may call for the surrender
of all outstanding Receipts to be exchanged for new Receipts specifically describing such new deposited securities. Anything to the contrary
herein notwithstanding, holders of Receipts shall have the right from and after the effective date of any such change in liquidation preference,
par or stated value, split-up, combination or other reclassification of the Stock or any such recapitalization, reorganization, merger
or consolidation to surrender such Receipts to the Depositary with instructions to convert, exchange or surrender the Stock represented
thereby only into or for, as the case may be, the kind and amount of shares of stock and other securities and property and cash into which
the Stock represented by such Receipts might have been converted or for which such Stock might have been exchanged or surrendered immediately
prior to the effective date of such transaction.
Section 4.7.
Delivery of Reports.
The Depositary shall furnish to holders of Receipts
any reports and communications received from the Company which are received by the Depositary and which the Company is required to furnish
to the holders of the Stock.
Section 4.8.
Lists of Receipt Holders.
Reasonably promptly upon request from time to time
by the Company, the Depositary shall furnish to it a list, as of the most recent practicable date, of the names, addresses and holdings
of Depositary Shares of all record holders of Receipts.
Article
V
THE DEPOSITARY, THE DEPOSITARY’S AGENTS, THE REGISTRAR AND THE COMPANY
Section 5.1.
Appointment, Maintenance of Offices, Agencies and Transfer Books by the Depositary; Registrar.
The Company hereby appoints Equiniti Trust Company
as Depositary for the Stock, and Equiniti Trust Company hereby accepts such appointment as Depositary for the Stock, on the terms and
conditions set forth in this Deposit Agreement. Upon execution of this Deposit Agreement, the Depositary shall maintain at the Depositary’s
Office, facilities for the execution and delivery, registration and registration of transfer, redemption, surrender and exchange of Receipts
and deposit and withdrawal of Stock, and at the offices of the Depositary’s Agents, if any, facilities for the delivery, registration
of transfer, redemption, surrender and exchange of Receipts and deposit and withdrawal of Stock, all in accordance with the provisions
of this Deposit Agreement.
The Depositary shall keep books at the Depositary’s
Office for the registration and registration of transfer, surrender and exchange of Receipts, which books at all reasonable times during
regular business hours shall be made available for inspection by the record holders of Receipts; provided that any such holder requesting
to exercise such right shall certify to the Depositary that such inspection shall be for a proper purpose reasonably related to such person’s
interest as an owner of Depositary Shares evidenced by the Receipts.
The Depositary or Registrar may close such books,
at any time or from time to time, when deemed expedient by it in connection with the performance of its duties hereunder, or because of
any requirement of law or any government, governmental body or commission, stock exchange or any applicable self-regulatory body.
If the Receipts or the Depositary Shares evidenced
thereby or the Stock represented by such Depositary Shares shall be listed on one or more national stock exchanges, the Company will appoint
the Depositary as Registrar (with the prior written approval of the Depositary) for registration of such Receipts or Depositary Shares
in accordance with any requirements of such exchange. Such Registrar (which may be the Depositary if so permitted by the requirements
of any such exchange) may be removed and a substitute Registrar appointed by the Company. If the Receipts, such Depositary Shares or such
Stock are listed on one or more other stock exchanges, the Depositary will, at the request of the Company, arrange such facilities for
the delivery, registration, registration of transfer, surrender and exchange of such Receipts, such Depositary Shares or such Stock as
may be required by law or applicable stock exchange regulation.
Section 5.2.
Prevention of or Delay in Performance by the Depositary, the Depositary’s Agents, the Registrar or the Company.
Neither the Depositary nor any Depositary’s
Agent nor any Registrar nor the Company shall incur any liability to any holder of any Receipt if by reason of any provision of any present
or future law, or regulation thereunder, of the United States of America or of any other governmental authority or, in the case of the
Depositary, the Depositary’s Agent or the Registrar, by reason of any provision, present or future, of the Company’s Restated
Articles of Incorporation, as amended (including the Certificate of Designation), or by reason of any act of God or war or other circumstance
beyond the control of the relevant party, the Depositary, the Depositary’s Agent, the Registrar or the Company shall be prevented
or forbidden from, or subjected to any penalty on account of, doing or performing any act or thing which the terms of this Deposit Agreement
provide shall be done or performed; nor shall the Depositary, any Depositary’s Agent, any Registrar or the Company incur liability
to any holder of a Receipt (i) by reason of any nonperformance or delay, caused as aforesaid, in the performance of any act or thing which
the terms of this Deposit Agreement shall provide shall or may be done or performed, or (ii) by reason of any exercise of, or failure
to exercise, any discretion provided for in this Deposit Agreement except as otherwise explicitly set forth in this Deposit Agreement.
Section 5.3.
Obligations of the Depositary, the Depositary’s Agents, the Registrar and the Company.
Neither the Depositary nor any Depositary’s
Agent nor any Registrar nor the Company assumes any obligation or shall be subject to any liability under this Deposit Agreement to holders
of Receipts other than for its gross negligence, willful misconduct, bad faith or fraud. Notwithstanding anything in this Deposit Agreement
to the contrary, neither the Depositary, nor the Depositary’s Agent nor any Registrar nor the Company shall be liable in any event
for special, punitive, incidental, indirect or consequential losses or damages of any kind whatsoever (including, but not limited to,
lost profits).
Neither the Depositary nor any Depositary’s
Agent nor any Registrar nor the Company shall be under any obligation under this Deposit Agreement to appear in, prosecute or defend any
action, suit or other proceeding in respect of the Stock, the Depositary Shares or the Receipts which in its reasonable opinion may involve
it in expense or liability unless indemnity reasonably satisfactory to it against all reasonable out-of-pocket expense and liability be
furnished as incurred.
Neither the Depositary nor any Depositary’s
Agent nor any Registrar nor the Company shall be liable for any action or any failure to act by it under this Deposit Agreement in good
faith upon the written advice of legal counsel or accountants, or information from any person presenting Stock for deposit, any holder
of a Receipt or any other person reasonably believed by it in good faith to be competent to give such information. The Depositary, any
Depositary’s Agent, any Registrar and the Company may each rely and shall each be protected in acting upon or omitting to act upon
any written notice, request, direction or other document reasonably believed by it to be genuine and to have been signed or presented
by the proper party or parties.
The Depositary shall not be responsible for any
failure to carry out any instruction to vote any of the shares of Stock or for the manner or effect of any such vote made, as long as
any such action or non-action is not due to the willful misconduct or gross negligence of the Depositary. The Depositary undertakes, and
any Registrar shall be required to undertake, to perform such duties and only such duties as are specifically set forth in this Deposit
Agreement, and no implied covenants or obligations shall be read into this Deposit Agreement against the Depositary or any Registrar.
The Depositary, the Depositary’s Agents,
and any Registrar may own and deal in any class of securities of the Company and its affiliates and in Receipts. The Depositary may also
act as transfer agent or registrar of any of the securities of the Company and its affiliates.
The Depositary shall not be responsible for advancing
funds on behalf of the Company and shall have no duty or obligation to make any payments if it has not timely received sufficient funds
to make timely payments.
In the event the Depositary reasonably believes
any ambiguity or uncertainty exists hereunder or in any notice, instruction, direction, request or other communication, paper or document
received by the Depositary hereunder, or in the administration of any of the provisions of this Deposit Agreement, the Depositary shall
deem it reasonably necessary or desirable that a matter be proved or established prior to taking, omitting or suffering to take any action
hereunder, the Depositary may, in its sole discretion upon written notice to the Company, refrain from taking any action and shall be
fully protected and shall not be liable in any way to the Company, any holders of Receipts or any other person or entity for refraining
from taking such action, unless the Depositary receives written instructions or a certificate signed by an authorized representative of
the Company which eliminates such ambiguity or uncertainty to the satisfaction of the Depositary or which proves or establishes the applicable
matter to the satisfaction of the Depositary. The Depositary shall not be liable to the Company or any holder of Receipts, for any action
taken by it in accordance with the written instruction of the Company.
Section 5.4.
Resignation and Removal of the Depositary; Appointment of Successor Depositary.
The Depositary may at any time resign as Depositary
hereunder by delivering notice of its election to do so to the Company, such resignation to take effect upon the appointment of a successor
Depositary and its acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the
Company by notice of such removal delivered to the Depositary, such removal to take effect upon the appointment of a successor Depositary
hereunder and its acceptance of such appointment as hereinafter provided.
In case at any time the Depositary acting hereunder
shall resign or be removed, the Company shall, within 60 days after the delivery of the notice of resignation or removal, as the case
may be, appoint a successor Depositary, which shall be a bank or trust company having its principal office in the United States of America
and having a combined capital and surplus, including with its affiliates, of at least $50,000,000. If no successor Depositary shall have
been so appointed and have accepted appointment within 60 days after delivery of such notice, the resigning or removed Depositary, the
Company or the holders of Receipts may petition any court of competent jurisdiction for the appointment of a successor Depositary. Every
successor Depositary shall execute and deliver to its predecessor and to the Company an instrument in writing accepting its appointment
hereunder that is mutually acceptable to the predecessor, the successor and the Company, and thereupon such successor Depositary, without
any further act or deed, shall become fully vested with all the rights, powers, duties and obligations of its predecessor and for all
purposes shall be the Depositary under this Deposit Agreement, and such predecessor, upon payment of all sums due it and on the written
request of the Company, shall promptly execute and deliver an instrument transferring to such successor all rights and powers of such
predecessor hereunder, shall duly assign, transfer and deliver all right, title and interest in the Stock and any moneys or property held
hereunder to such successor, and shall deliver to such successor a list of the record holders of all outstanding Receipts and such records,
books and other information in its possession relating thereto. Any successor Depositary shall promptly mail or transmit by such other
method approved by such successor Depositary, in its reasonable discretion, notice of its appointment to the record holders of Receipts.
Any entity into or with which the Depositary may
be merged, consolidated or converted shall be the successor of such Depositary without the execution or filing of any document or any
further act, and notice thereof shall not be required hereunder. Such successor Depositary may execute the Receipts in the name of the
predecessor Depositary or in the name of the successor Depositary.
Section 5.5.
Corporate Notices and Reports.
The Company agrees that it will deliver to the
Depositary, and the Depositary will, promptly after receipt thereof, transmit to the record holders of Receipts, in each case at the addresses
recorded in the Depositary’s books, copies of all notices and reports (including without limitation financial statements) required
by law, by the rules of any national securities exchange upon which the Stock, the Depositary Shares or the Receipts are listed or by
the Company’s Restated Articles of Incorporation, as amended (including the Certificate of Designation), to be furnished to the
record holders of Receipts. Such transmission will be at the Company’s expense and the Company will provide the Depositary with
such number of copies of such documents as the Depositary may reasonably request. In addition, the Depositary will transmit to the record
holders of Receipts at the Company’s expense such other documents as may be requested by the Company.
From time to time and after the date hereof, the
Company agrees that it will perform, acknowledge and deliver or cause to be performed, acknowledged and delivered all such further and
other acts, documents, instruments and assurances as may be reasonably required by the Depositary for the carrying out or performing by
the Depositary of the provisions of this Deposit Agreement.
Section 5.6.
Indemnification.
The Depositary will indemnify the Company
and hold it harmless from any loss, liability or expense actually incurred (including the reasonable and documented out-of-pocket costs
and expenses of defending itself) which may arise out of acts performed or omitted by the Depositary, including when such Depositary acts
as Registrar, or the Depositary’s Agents in connection with this Deposit Agreement due to its or their gross negligence, willful
misconduct or actual fraud (which gross negligence, willful misconduct or actual fraud must be determined by a final, non-appealable judgment
of a court of competent jurisdiction).
From time to time, the Company may provide
Depositary with instructions concerning the services performed by the Depositary hereunder. In addition, at any time Depositary may apply
to any authorized officer of Company for instruction, and may consult with legal counsel for Depositary or Company with respect to any
matter arising in connection with the services to be performed by the Depositary under this Deposit Agreement. Depositary and its agents
and subcontractors shall not be liable and shall be indemnified by Company for any action taken or omitted by Depositary in reliance upon
any Company instructions or upon the advice or opinion of such counsel. Depositary shall not be held to have notice of any change of authority
of any person, until receipt of written notice thereof from Company.
Notwithstanding Section 5.3 to the contrary, the
Company shall indemnify the Depositary, any Depositary’s Agent and any Registrar (including each of their officers, directors, agents
and employees) against, and hold each of them harmless from, any loss, damage, cost, penalty, liability or expense (including the reasonable
and documented out-of-pocket costs and expenses of defending itself) which may arise out of acts performed or omitted to be taken in connection
with this Deposit Agreement and the Receipts by the Depositary, any Registrar or any of their respective agents (including any Depositary’s
Agent), except for any liability arising out of gross negligence, willful misconduct or actual fraud on the respective parts of any such
person or persons (which gross negligence, willful misconduct or actual fraud must be determined by a final, non-appealable judgment of
a court of competent jurisdiction).
Neither party to this Deposit Agreement shall be
liable to the other party for any consequential, indirect, punitive, special or incidental damages under any provisions of this Deposit
Agreement or for any consequential, indirect, punitive, special or incidental damages arising out of any act or failure to act hereunder
even if that party has been advised of or has foreseen the possibility of such damages.
Promptly following becoming aware of circumstances
that might give rise to a claim for indemnification under this Deposit Agreement, the Indemnified Party shall notify the Indemnifying
Party of the relevant claim; provided that failure to so notify shall not affect the Indemnified Party’s right to indemnification
hereunder, except to the extent the Indemnifying Party is materially prejudiced thereby. The Indemnifying Party shall, at its own expense,
be entitled to (i) control and direct the investigation and defense of any claim; provided that if such claim is covered by an insurance
policy of the Indemnified Party and the applicable insurer assumes control of the investigation and defense of such claim, the Indemnifying
Party shall, at its own expense, be entitled to participate in the investigation and defense of such claim, and (ii) have the right to
settle any such claim without the consent of the Indemnified Party; provided that such settlement (A) fully and irrevocably releases the
Indemnified Party from any liability and provides no admission of wrongdoing, and (B) does not subject the Indemnified Party to any additional
obligation, whether financial or otherwise. In the event that any such settlement does not meet the requirements of (A) and (B) above,
then the Indemnified Party must consent to such settlement in writing, which consent shall not be unreasonably withheld, conditioned or
delayed. The Indemnified Party shall provide reasonable assistance to the Indemnifying Party in connection with the Indemnifying Party’s
defense of a claim and may participate in the defense of a claim with counsel of its own choosing at its own cost and expense, unless
the Indemnifying Party specifically authorizes the retaining of such counsel.
The rights and obligations of the Depositary and
the Company set forth in this Section 5.6 shall survive any termination of this Deposit Agreement and any resignation, removal or succession
of any Depositary, Registrar or Depositary’s Agent, in accordance with Section 6.2.
Section 5.7.
Fees, Charges and Expenses.
The Company agrees promptly to pay the Depositary
the compensation to be agreed upon with the Company for all services rendered by the Depositary hereunder and to reimburse the Depositary
for its reasonable out-of-pocket expenses (including reasonable counsel fees and expenses) incurred by the Depositary in connection with
the services rendered and documented by it (or such Depositary’s Agent) hereunder. The Company shall pay all charges of the Depositary
in connection with the initial deposit of the Stock and the initial issuance of the Depositary Shares, all withdrawals of shares of the
Stock by owners of Depositary Shares, and any redemption or exchange of the Stock at the option of the Company. The Company shall pay
all transfer and other taxes, assessments and governmental charges arising solely from the existence of the depositary arrangements. All
other transfer and other taxes, assessments and governmental charges shall be at the expense of holders of Depositary Shares evidenced
by Receipts. If, at the request of a holder of Receipts, the Depositary incurs charges or expenses for which the Company is not otherwise
liable hereunder, such holder will be liable for such charges and expenses; provided, however, that the Depositary may, at its sole
option, require a holder of a Receipt to prepay the Depositary any charge or expense the Depositary has been asked to incur at the request
of such holder of Receipts. The Depositary shall present its statement for charges and expenses to the Company once every three months
or at such other intervals as the Company and the Depositary may agree. No charges and expenses of the Depositary or any Depositary’s
Agent hereunder shall be payable by any person, except as provided in this Section 5.7.
Section 5.8.
Tax Compliance.
The Depositary, on its own behalf and on behalf
of the Company, will comply with all applicable certification, information reporting and withholding (including “backup” withholding)
requirements imposed by applicable tax laws, regulations or administrative practice with respect to (i) any payments made with respect
to the Depositary Shares or (ii) the issuance, delivery, holding, transfer, redemption or exercise of rights under the Receipts or the
Depositary Shares. Such compliance shall include, without limitation, the preparation and timely filing of required returns and the timely
payment of all amounts required to be withheld to the appropriate taxing authority or its designated agent.
The Depositary shall comply with any direction
received from the Company with respect to the application of such requirements to particular payments or holders or in other particular
circumstances, and may for purposes of this Deposit Agreement rely on any such direction in accordance with the provisions of Section
5.3 hereof.
The Depositary shall maintain all appropriate records
documenting compliance with such requirements and shall make such records available on request to the Company or to its authorized representatives.
Article
VI
AMENDMENT AND TERMINATION
Section 6.1.
Amendment.
The form of the Receipts and any provisions of
this Deposit Agreement may at any time and from time to time be amended by agreement between the Company and the Depositary without the
consent of holders of Receipts in any respect which they may deem necessary or desirable; provided, however, that no such amendment which
shall materially and adversely alter the rights of the holders of Receipts or would be materially and adversely inconsistent with the
rights of the holders of Stock shall be effective unless such amendment shall have been approved by the holders of Receipts representing
in the aggregate the amount of Receipts then outstanding necessary to approve any amendment that would alter or abrogate the special rights
of the Stock. Every holder of an outstanding Receipt at the time any such amendment becomes effective shall be deemed, by continuing to
hold such Receipt, to consent and agree to such amendment and to be bound by this Deposit Agreement as amended thereby. In no event shall
any amendment impair the right, subject to the provisions of Sections 2.5 and 2.6 and Article III, of any owner of Depositary Shares to
surrender any Receipt evidencing such Depositary Shares to the Depositary with instructions to deliver to the holder the Stock and all
money and other property, if any, represented thereby, except in order to comply with mandatory provisions of applicable law or the rules
and regulations of any governmental body, agency or commission, or applicable stock exchange.
Section 6.2.
Termination.
This Deposit Agreement may be terminated by the
Company at any time upon not less than 30 days prior written notice to the Depositary if the holders of Receipts evidencing a majority
of the Depositary Shares then outstanding consent to such termination, whereupon the Depositary will mail notice of such termination to
the record holders of all Receipts then outstanding.
If any Receipts shall remain outstanding after
the date of termination of this Deposit Agreement, the Depositary thereafter shall discontinue the transfer of Receipts, shall suspend
the distribution of dividends to the holders thereof and shall not give any further notices (other than notice of such termination) or
perform any further acts under this Deposit Agreement, except that the Depositary shall continue to collect dividends and other distributions
pertaining to Stock, shall sell rights, preferences or privileges as provided in this Deposit Agreement and shall deliver the number of
whole or fractional shares of Stock and any money and other property, if any, represented by Receipts upon surrender thereof by the holders
thereof. At any time after the expiration of two years from the date of termination, the Depositary may sell Stock then held hereunder
at public or private sale, at such places and upon such terms as it deems proper and may thereafter hold the net proceeds of any such
sale, together with any money and other property held by it hereunder, without liability for interest, for the benefit, pro rata in accordance
with their holdings, of the holders of Receipts that have not theretofore been surrendered. After making such sale, the Depositary shall
be discharged from all obligations under this Deposit Agreement except to account for such net proceeds and money and other property;
provided, that Sections 5.3 and 5.6 shall survive the termination of this Deposit Agreement.
This Deposit Agreement will terminate automatically
(i) if all outstanding Depositary Shares have been redeemed pursuant to Section 2.8 or (ii) if there shall have been made a final distribution
in respect of the Stock in connection with any liquidation, dissolution or winding up of the Company and such distribution shall have
been distributed to the holders of Depositary Shares pursuant to Section 4.1 or 4.2, as applicable.
Upon the termination of this Deposit Agreement,
the Company shall be discharged from all obligations under this Deposit Agreement except for its obligations to the Depositary, any Depositary’s
Agent and any Registrar under Sections 5.6 and 5.7; provided, however, that Sections 5.2, 5.3, 5.6, 7.2, 7.3, 7.4, 7.7, 7.8 and 7.11 shall
survive the termination of this Deposit Agreement and any succession of any Depositary, Registrar or Depositary’s Agent.
Article
VII
MISCELLANEOUS
Section 7.1.
Counterparts; Electronic Signatures.
This Deposit Agreement may be executed in counterparts,
each of which when so executed shall be deemed to be an original and all of which when taken together shall constitute one and the same
instrument. The words “execution,” “signed,” “signature,” and words of like import in this Deposit
Agreement or in any other certificate, agreement or document related to this Deposit Agreement shall include images of manually executed
signatures transmitted by facsimile or other electronic format (including, without limitation, “pdf”, “tif” or
“jpg”) and other electronic signatures (including, without limitation, DocuSign and AdobeSign). The use of electronic signatures
and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received,
or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use
of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures
in Global and National Commerce Act, the New York State Electronic Signatures and Records Act and any other applicable law, including,
without limitation, any state law based on the Uniform Electronic Transactions Act or the Uniform Commercial Code.
Section 7.2.
Exclusive Benefit of Parties.
This Deposit Agreement is for the exclusive benefit
of the parties hereto, and their respective successors hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
Section 7.3.
Invalidity of Provisions.
In case any one or more of the provisions contained
in this Deposit Agreement or in the Receipts should be or become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall in no way be affected, prejudiced or disturbed thereby.
Section 7.4.
Notices.
Any and all notices to be given to the Company
hereunder or under the Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by mail,
by electronic mail, overnight delivery or by facsimile, confirmed by letter, addressed to the Company at
CMS Energy Corporation
One Energy Plaza
Jackson, Michigan 49201
Attention: Vice President and Treasurer
Facsimile: 517-788-2186
Email: sri.maddipati@cmsenergy.com
or at any other addresses of which the Company shall
have notified the Depositary in writing.
Any and all notices to be given to the Depositary
hereunder or under the Receipts shall be in writing and shall be deemed to have been duly given if personally delivered or sent by mail,
by electronic mail, overnight delivery or by facsimile, confirmed by letter, addressed to the Depositary at the Depositary’s Office
at
Equiniti Trust Company
1110 Centre Pointe Curve, Suite 101
Mendota Heights, MN 55120-4100
Attention: Tracie Balach
Email: tracie.balach@equiniti.com
or at any other address of which the Depositary shall have notified
the Company in writing.
Except as otherwise provided herein, any and all
notices to be given to any record holder of a Receipt hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally delivered or sent by mail or facsimile transmission confirmed by letter, addressed to such record holder
at the address of such record holder as it appears on the books of the Depositary, or if such holder shall have timely filed with the
Depositary a written request that notices intended for such holder be mailed to some other address, at the address designated in such
request.
Delivery of a notice sent by mail or by facsimile
transmission as provided in this Section shall be deemed to be effected at the time when a duly addressed letter containing the same (or
a confirmation thereof in the case of a facsimile transmission) is deposited, postage prepaid, in a post office letter box; provided,
that notice to a Global Receipt Depository shall be deemed to be effected at the time such notice is delivered or made as provided in
this Section. The Depositary or the Company may, however, act upon any facsimile transmission received by it from the other or from any
holder of a Receipt, notwithstanding that such facsimile transmission shall not subsequently be confirmed by letter or as aforesaid.
Notwithstanding anything to the contrary in this
Deposit Agreement, if Depositary Shares are held in book-entry form through a Global Receipt Depository, any notices to holders of Receipts
may be given to such holders in any manner permitted by such Global Receipt Depository.
Section 7.5.
Depositary’s Agents.
The Depositary may from time to time appoint Depositary’s
Agents to act in any respect for the Depositary for the purposes of this Deposit Agreement and may at any time appoint additional Depositary’s
Agents and vary or terminate the appointment of such Depositary’s Agents. The Depositary will promptly notify the Company in advance
of any such action.
Section 7.6.
Appointment of Registrar in Respect of the Receipts.
The Company hereby appoints the Depositary as Registrar
in respect of the Receipts and the Depositary hereby accepts such appointment.
Section 7.7.
Holders of Receipts Are Parties.
The holders of Receipts from time to time shall
be parties to this Deposit Agreement and shall be bound by all of the terms and conditions hereof and of the Receipts by acceptance of
delivery thereof.
Section 7.8.
Governing Law.
This Deposit Agreement and the Receipts and all
rights hereunder and thereunder and provisions hereof and thereof shall be governed by, and construed in accordance with, the laws of
the State of New York without giving effect to applicable conflicts of law principles.
Section 7.9.
Inspection of Deposit Agreement.
Copies of this Deposit Agreement shall be filed
with the Depositary and the Depositary’s Agents and shall be made available for inspection during business hours upon reasonable
notice to the Depositary at the Depositary’s Office and the respective offices of the Depositary’s Agents, if any, by any
holder of a Receipt.
Section 7.10.
Headings.
The headings of articles and sections in this Deposit
Agreement and in the form of the Receipt set forth in Exhibit A hereto have been inserted for convenience only and are not to be regarded
as a part of this Deposit Agreement or the Receipts or to have any bearing upon the meaning or interpretation of any provision contained
herein or in the Receipts.
Section 7.11.
Confidentiality.
The Depositary and the Company agree that all books,
records, information and data pertaining to the business of the other party, including, inter alia, personal, non-public holder information,
which are exchanged or received pursuant to the negotiation or the carrying out of this Deposit Agreement, shall remain confidential,
and shall not be voluntarily disclosed to any other person, except as contemplated by this Deposit Agreement and as may be required by
law or legal process.
Section 7.12.
Force Majeure.
Notwithstanding anything to the contrary contained
herein, the Depositary will not be liable for any delays or failures in performance resulting from acts beyond its reasonable control
including, without limitation, acts of God, terrorist acts, shortage of supply, pandemics or epidemics, breakdowns or malfunctions, interruptions
or malfunction of computer facilities, or loss of data due to power failures or mechanical difficulties with information storage or retrieval
systems, labor difficulties, war, or civil unrest.
Section 7.13.
Certificate of Designation.
The foregoing shall be further subject to the terms
and conditions of the Certificate of Designation. In the event of any conflict between the provisions of this Deposit Agreement and the
provisions of the Certificate of Designation, the provisions of the Certificate of Designation will govern and the Company will instruct
the Depositary in writing accordingly of such governing terms; provided, however, that under no circumstances will the Certificate of
Designation be deemed to change or modify any of the rights, duties or immunities of the Depositary contained herein.
[Signature Page Follows]
IN WITNESS WHEREOF, the Company and the Depositary
have duly executed this Deposit Agreement as of the date first above set forth, and all holders of Receipts shall become parties hereto
by and upon acceptance by them of delivery of Receipts issued in accordance with the terms hereof.
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CMS ENERGY CORPORATION
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By:
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/s/ Todd A. Wehner
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Name: Todd A. Wehner
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Title: Assistant Treasurer
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EQUINITI TRUST COMPANY
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By:
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/s/ Matthew D .Paseka
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Name: Matthew D .Paseka
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Title: SVP
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EXHIBIT A
[FORM OF FACE OF RECEIPT]
THE DEPOSITARY SHARES REPRESENTED
BY THIS RECEIPT ARE NOT DEPOSITS OR OTHER OBLIGATIONS OF A BANK AND ARE NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY
OTHER GOVERNMENT AGENCY.
UNLESS THIS RECEIPT IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO CMS ENERGY CORPORATION
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY RECEIPT ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
DEPOSITARY SHARES
[●]
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES EACH
REPRESENTING 1/1,000TH OF ONE SHARE OF 4.200% CUMULATIVE REDEEMABLE
PERPETUAL PREFERRED STOCK, SERIES C
OF
CMS ENERGY CORPORATION
INCORPORATED UNDER THE LAWS OF THE STATE OF MICHIGAN
CUSIP 125896 837
SEE REVERSE FOR CERTAIN DEFINITIONS
DIVIDEND PAYMENT DATES: BEGINNING
OCTOBER 15, 2021, EACH JANUARY 15,
APRIL 15, JULY 15 AND OCTOBER 15
Equiniti Trust Company, a limited liability trust
company formed under the laws of the State of New York, as Depositary (the “Depositary”), hereby certifies that Cede
& Co. is the registered owner of [●] ([●]) DEPOSITARY SHARES (“Depositary Shares”), each Depositary
Share representing 1/1,000th of one share of 4.200% Cumulative Redeemable Perpetual Preferred Stock, Series C, $0.01 par value per share,
liquidation preference $25,000 per share (the “Stock”), of CMS Energy Corporation, a Michigan corporation (the “Company”),
on deposit with the Depositary, subject to the terms and entitled to the benefits of the Deposit Agreement, dated as of July 1, 2021 (the
“Deposit Agreement”), among the Company, the Depositary and the holders from time to time of the Depositary Receipts
issued thereunder. By accepting this Depositary Receipt, the holder hereof becomes a party to and agrees to be bound by all the terms
and conditions of the Deposit Agreement. This Depositary Receipt is subject to all of the terms, provisions and conditions of the Deposit
Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and made a part hereof and to which Deposit
Agreement reference is hereby made for a full description of the rights, limitations of rights, obligations, duties and immunities hereunder
of the Depositary, the Company and the holders of the Depositary Receipts. This Depositary Receipt shall not be valid or obligatory for
any purpose or entitled to any benefits under the Deposit Agreement unless it shall have been executed by the Depositary by the manual
or facsimile signature of a duly authorized officer.
This Depositary Receipt is transferable in New
York, New York.
Dated: July 1, 2021
Equiniti Trust Company, Depositary
[FORM OF REVERSE OF RECEIPT]
CMS ENERGY CORPORATION
CMS ENERGY CORPORATION WILL FURNISH
WITHOUT CHARGE TO EACH HOLDER OF A RECEIPT WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A COPY OR SUMMARY OF THE CERTIFICATE OF
DESIGNATION ESTABLISHING THE 4.200% CUMULATIVE REDEEMABLE PERPETUAL PREFERRED STOCK, SERIES C, OF CMS ENERGY CORPORATION. ANY SUCH REQUEST
IS TO BE ADDRESSED TO THE DEPOSITARY NAMED ON THE FACE OF THIS RECEIPT.
EXPLANATION OF ABBREVIATIONS
The following abbreviations when used in the instructions
on the face of this receipt shall be construed as though they were written out in full according to applicable laws or regulations. Abbreviations
in addition to those appearing below may be used.
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Abbreviation
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Equivalent
Phrase
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Abbreviation
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Equivalent
Phrase
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JT TEN
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As joint tenants, with right of survivorship and not as tenants in common
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TEN BY ENT
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As tenants by the entireties
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TEN IN COM
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As tenants in common
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UNIF GIFT MIN ACT
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Uniform Gifts to Minors Act
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Abbreviation
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Equivalent
Word
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Abbreviation
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Equivalent
Word
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Abbreviation
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Equivalent
Word
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ADM
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Administrator(s), Administratrix
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EX
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Executor(s), Executrix
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PAR
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Paragraph
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AGMT
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Agreement
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FBO
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For the benefit of
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PL
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Public Law
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ART
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Article
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FDN
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Foundation
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TR
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(As) trustee(s), for, of
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CH
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Chapter
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GDN
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Guardian(s)
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U
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Under
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CUST
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Custodian for
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GDNSHP
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Guardianship
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UA
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Under agreement
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DEC
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Declaration
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MIN
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Minor(s)
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UW
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Under will of, Of will of, Under last will & testament
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EST
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Estate, of Estate of
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ASSIGNMENT
For value received, hereby sell(s), assign(s) and
transfer(s) unto
Name:______________________________________________________________
SSN/EIN:___________________________________________________________
Address:____________________________________________________________
________________ Depositary Shares represented by the within Receipt,
and do(es) hereby irrevocably constitute and appoint ________________ Attorney to transfer the said Depositary Shares on the books of
the within named Depositary with full power of substitution in the premises.
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Dated:_______________________________
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NOTICE: The signature to the assignment must correspond with the name as written upon the face of this Receipt in every particular, without alteration or enlargement or any change whatsoever.
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SIGNATURE GUARANTEED
NOTICE: The signature(s) should be guaranteed by an eligible guarantor
institution (banks, stockbrokers, savings and loan associations, and credit unions with membership in an approved signature guarantee
medallion program), pursuant to Rule 17Ad-15 under the Securities Exchange Act of 1934, as amended.
EXHIBIT B
CERTIFICATE OF DESIGNATION
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515
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02 E3
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JUN 29 2021
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8004973535
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CERTIFICATE
OF DESIGNATION OF
4.200% CUMULATIVE
REDEEMABLE PERPETUAL
PREFERRED STOCK,
SERIES C
OF
CMS ENERGY CORPORATION
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FILED
JUN
29 2021
ADMINISTRATOR
CORPORATIONS
DIVISION
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CMS Energy Corporation, a corporation organized
and existing under the Business Corporation Act of the State of Michigan (the “Corporation”), in accordance with the
provisions of Section 302(3) thereof, does hereby certify:
The board of directors of the Corporation (the
“Board of Directors”), in accordance with Article III of the Restated Articles of Incorporation, as amended, of the
Corporation, the Amended and Restated Bylaws of the Corporation and applicable law, authorized the issuance and sale by the Corporation
of shares of its Preferred Stock pursuant to resolutions adopted by the Board of Directors effective May 1, 2020 (collectively, the “Resolutions”)
and granted the Special Financing Committee of the Board of Directors (the “Committee”) the full authority to act on
behalf of the Board of Directors for the purposes stated in the Resolutions with respect to the proposed issuance and sale by the Corporation
of shares of its Preferred Stock, and pursuant to the authority conferred upon the Committee in accordance with Section 528(1)(a) of the
Business Corporation Act of the State of Michigan and the Resolutions, the Committee adopted the following resolution creating and setting
forth the terms of a series of Preferred Stock of the Corporation designated as the “4.200% Cumulative Redeemable Perpetual Preferred
Stock, Series C.”
RESOLVED, that pursuant to the authority vested
in the Committee and in accordance with the Resolutions, the provisions of the Restated Articles of Incorporation, as amended, of the
Corporation, the Amended and Restated Bylaws of the Corporation and applicable law, a series of Preferred Stock, par value $0.01 per share,
of the Corporation be and hereby is created, and that the designation and number of shares of such series, and the voting and other powers,
preferences and relative, participating, optional or other special rights, and the qualifications, limitations or restrictions, of the
shares of such series (in addition to the provisions of the Restated Articles of Incorporation, as amended, of the Corporation, which
are applicable to Preferred Stock regardless of series), are as follows:
SECTION 1. Designation.
The distinctive serial designation of such series of Preferred Stock is “4.200% Cumulative Redeemable Perpetual Preferred Stock,
Series C” (the “Series C Preferred Stock”).
Each share of Series C Preferred Stock shall be identical in all respects to every other share of Series C Preferred Stock, except as
to the respective dates from which dividends thereon shall accumulate, to the extent such dates may differ as permitted pursuant to Section
4(a) below.
SECTION 2. Number of Shares and Ranking.
(a) The
authorized number of shares of Series C Preferred Stock shall be 9,200. Such number of shares may be decreased by resolution of the Board
of Directors; provided that no decrease shall reduce the number of shares of Series C Preferred Stock to a number that is less than that
of the shares of Series C Preferred Stock then outstanding. Any such decrease in the number of shares of Series C Preferred Stock shall
have the status of authorized but unissued shares of Preferred Stock undesignated as to series and may with any and all other authorized
but unissued shares of Preferred Stock be designated or redesignated and issued or reissued, as the case may be, as part of any series
of Preferred Stock.
(b) The
Series C Preferred Stock shall rank, with respect to dividend rights and distribution rights upon the liquidation, winding-up or
dissolution of the Corporation: (i) senior to the Common Stock and each other class or series of Junior Stock; (ii) on parity with each
class or series of Parity Stock; and (iii) junior to each class or series of Senior Stock.
SECTION 3. Definitions.
As used herein with respect to the Series C Preferred Stock:
“Articles” means the Restated
Articles of Incorporation of the Corporation, as amended and as the same may be amended, restated or amended and restated from time to
time.
“Board of Directors” means the Board of
Directors of the Corporation.
“Business Day” means any day
other than a Saturday or Sunday or any other day on which commercial banks in New York City are authorized or required by law or executive
order to close.
“Bylaws” means the Amended and
Restated Bylaws of the Corporation, as they may be amended, restated or amended and restated from time to time.
“Certificate of Designation”
means this Certificate of Designation establishing the terms of the Series C Preferred Stock.
The term “close of business” means 5:00
p.m., New York City time.
“Common Stock” means the common stock of
the Corporation.
“Corporation” means CMS Energy Corporation,
a Michigan corporation.
“Dividend Disbursing Agent” means
Equiniti Trust Company d/b/a EQ Shareowner Services, the Corporation’s duly appointed dividend disbursing agent for the Series C
Preferred Stock, or any successor appointed under Section 9.
“Dividend Payment Date” has the
meaning set forth in Section 4(a).
“Dividend Period” means the period
from, and including, a Dividend Payment Date to, but excluding, the next Dividend Payment Date, except that the initial Dividend Period
shall commence on, and include, the Initial Issue Date.
“DTC” has the meaning set forth
in Section 6.
“Holder” means each Person in
whose name any share of the Series C Preferred Stock is registered on the stock register of the Corporation, who shall be treated by the
Corporation and the Registrar as the absolute owner of such share of the Series C Preferred Stock.
“Initial Issue Date” means July
1, 2021, the original issue date of shares of the Series C Preferred Stock.
“Junior Stock” means: (a) the
Common Stock; and (b) each other class or series of capital stock of the Corporation established after the Initial Issue Date the terms
of which do not expressly provide that such class or series shall rank senior to or on parity with the Series C Preferred Stock as to
dividend rights and distribution rights upon the Corporation’s liquidation, winding-up or dissolution.
“Liquidation Dividend Amount”
shall have the meaning set forth in Section 7(a).
“Liquidation Preference” means,
as to the Series C Preferred Stock, $25,000 per share thereof, subject to adjustment as provided in Section 16(b).
“Nonpayment Event” shall have
the meaning set forth in Section 8(b)(i).
“Officer” shall have the meaning
set forth in Section 14(b).
“Parity Stock” means each class
or series of capital stock of the Corporation established after the Initial Issue Date the terms of which expressly provide that such
class or series shall rank on parity with the Series C Preferred Stock as to dividend rights and distribution rights upon the Corporation’s
liquidation, winding-up or dissolution.
“Person” means any individual,
partnership, corporation, limited liability company, business trust, joint stock company, trust, unincorporated association, joint venture,
governmental authority or other entity of whatever nature.
“Preferred Directors” shall have the meaning
set forth in Section 8(b)(i).
“Preferred Stock” means the preferred stock
of the Corporation.
“Prospectus Supplement” means
the prospectus supplement dated June 24, 2021 relating to the initial offering and sale of the depositary shares each representing a 1/1,000th
interest in a share of the Series C Preferred Stock.
“Ratings Event” means that, and
shall be deemed to have occurred when, any nationally recognized statistical rating organization as defined in Section 3(a)(62) of the
Securities Exchange Act of 1934, as amended, or in any successor provision thereto, that then publishes a rating for the Corporation (a
“Rating Agency”), amends, clarifies or changes the criteria it uses to assign equity credit to securities such as the
Series C Preferred Stock, which amendment, clarification or change results in:
(a) the
shortening of the length of time the Series C Preferred Stock is assigned a particular level of equity credit by that Rating Agency as
compared to the length of time the Series C Preferred Stock would have been assigned that level of equity credit by that Rating Agency
or its predecessor on the Initial Issue Date; or
(b) the
lowering of the equity credit (including up to a lesser amount) assigned to the Series C Preferred Stock by that Rating Agency as compared
to the equity credit assigned by that Rating Agency or its predecessor on the Initial Issue Date.
“Record Date” has the meaning
set forth in Section 4(a).
“Redemption Date” means any date
fixed for redemption of any shares of Series C Preferred Stock pursuant to the provisions of Section 5.
“Registrar” means Equiniti Trust
Company d/b/a EQ Shareowner Services, the Corporation’s duly appointed registrar for the Series C Preferred Stock, or any successor
appointed under Section 9.
“Senior Stock” means each class
or series of capital stock of the Corporation established after the Initial Issue Date the terms of which expressly provide that such
class or series shall rank senior to the Series C Preferred Stock as to dividend rights or distribution rights upon the Corporation’s
liquidation, winding-up or dissolution.
“Series C Preferred Stock” has
the meaning set forth in Section 1.
“Share Dilution Amount” means
the increase in the number of diluted shares outstanding (determined in accordance with accounting principles generally accepted in the
United States, and as measured from the date of the Corporation’s consolidated financial statements most recently filed with the
Securities and Exchange Commission prior to the Initial Issue Date) resulting from the grant, vesting or exercise of equity-based compensation
to directors, employees, contractors and agents and equitably adjusted for any stock split, stock dividend, reverse stock split, reclassification
or similar event.
“Transfer Agent” means Equiniti
Trust Company d/b/a EQ Shareowner Services, the Corporation’s duly appointed transfer agent for the Series C Preferred Stock, or
any successor appointed under Section 9.
“Voting Preferred Stock” means
any series of Preferred Stock, other than the Series C Preferred Stock, ranking equally with the Series C Preferred Stock either as to
dividends or to the distribution of assets upon liquidation, dissolution or winding-up of the Corporation and upon which voting rights
similar to the voting rights of the Series C Preferred Stock in all material respects have been established for such series of Preferred
Stock and which are exercisable at the time of any vote of the Preferred Stock.
SECTION 4. Dividends.
(a) Rate.
Subject to the rights of holders of any class or series of capital stock of the Corporation ranking senior to the Series C Preferred Stock
with respect to dividends, Holders shall be entitled to receive, when, as and if declared by the Board of Directors (or an authorized
committee thereof) out of funds of the Corporation legally available for payment, cash dividends at the rate per annum of 4.200% on the
Liquidation Preference per share of the Series C Preferred Stock. Declared dividends on the Series C Preferred Stock will be
payable in arrears on January 15, April 15, July 15 and October 15 of each year, commencing on October 15, 2021 (each, a “Dividend
Payment Date”). Dividends on the Series C Preferred Stock shall accumulate daily from and including the most recent date as
to which dividends shall have been paid or, if no dividends have been paid, from the Initial Issue Date (or such other date as may be
set forth in the certificate evidencing the relevant shares of Series C Preferred Stock) without regard to whether funds are legally available
for the declaration or payment of such dividends. Declared dividends shall be payable on the relevant Dividend Payment Date to Holders
as they appear on the Corporation’s stock register at the close of business on the immediately preceding January 1, April 1, July
1 or October 1, as applicable (each, a “Record Date”). These Record Dates shall apply regardless of whether a particular
Record Date is a Business Day. If a Dividend Payment Date is not a Business Day, payment of declared dividends shall be made on the next
succeeding Business Day, without any interest, additional dividends, or other payment in lieu of interest or additional dividends accumulating
with respect to this delay.
Dividends accumulating or payable on the
Series C Preferred Stock for any Dividend Period (or portion thereof) shall be calculated on the basis of a 360-day year consisting of
twelve 30-day months. Accumulations of dividends on shares of the Series C Preferred Stock shall not bear interest or dividends on such
accumulated amount.
No dividend shall be declared or paid
on, or any sum of cash set aside for the payment of dividends on, any outstanding shares of Series C Preferred Stock with respect to any
Dividend Period unless all dividends for all preceding Dividend Periods have been declared and paid on, or a sufficient sum of cash has
been set aside for the payment of such dividends on, all outstanding shares of Series C Preferred Stock.
(b) Priority
of Dividends. So long as any share of the Series C Preferred Stock remains outstanding, no dividend or distribution shall be declared
or paid on Common Stock or any other Junior Stock, and no Common Stock or any other Junior Stock shall be repurchased, redeemed or otherwise
acquired for consideration by the Corporation or any of its subsidiaries unless, in each case, all accumulated and unpaid dividends for
all preceding Dividend Periods have been declared and paid, or a sufficient sum of cash has been set aside for the payment of such dividends,
on all outstanding shares of the Series C Preferred Stock. The foregoing limitation shall not apply to: (i) any dividend or distribution
payable in shares of Common Stock or other Junior Stock, together with cash in lieu of any fractional share; (ii) repurchases, redemptions
or other acquisitions of Common Stock or other Junior Stock in connection with the administration of any benefit or other incentive plan,
including any employment contract, including, without limitation, (x) purchases to offset the Share Dilution Amount pursuant to a publicly
announced repurchase plan; provided that any purchases to offset the Share Dilution Amount shall in no event exceed the Share Dilution
Amount, (y) the forfeiture of unvested shares of restricted stock or share withholdings or other surrender of shares to which the holder
may otherwise be entitled upon exercise, delivery or vesting of equity awards (whether in payment of applicable taxes, the exercise price
or otherwise), and (z) the payment of cash in lieu of fractional shares; (iii) purchases of fractional interests in shares of Common Stock
or other Junior Stock pursuant to the conversion or exchange provisions of such shares of other Junior Stock or any securities exchangeable
for or convertible into shares of Common Stock or other Junior Stock; (iv) any dividends or distributions of rights or Common Stock or
other Junior Stock in connection with a shareholders’ rights plan or any redemption or repurchase of rights pursuant to any shareholders’
rights plan; (v) repurchases of Common Stock or other Junior Stock pursuant to a contractually binding requirement to buy Common Stock
or other Junior Stock existing prior to the preceding Dividend Period, including under a contractually binding stock repurchase plan;
(vi) the deemed purchase or acquisition of fractional interests in shares of Common Stock or other Junior Stock pursuant to the conversion
or exchange provisions of such shares or the security being converted or exchanged; (vii) the acquisition by the Corporation or any of
its subsidiaries of record ownership in Common Stock or other Junior Stock for the beneficial ownership of any other Persons (other than
the Corporation or any of its subsidiaries), including as trustees or custodians, and the payment of cash in lieu of fractional shares;
and (viii) the exchange or conversion of Junior Stock for or into other Junior Stock and the payment of cash in lieu of fractional shares.
When dividends on shares of the Series C Preferred
Stock with respect to any previously completed Dividend Period (A) have not been declared and paid in full or (B) have been declared but
a sum of cash sufficient for payment thereof has not been set aside for the benefit of the Holders thereof on the applicable Record Date,
no dividends may be declared or paid on any Parity Stock unless dividends are declared on the shares of Series C Preferred Stock such
that the respective amounts of such dividends declared on the shares of Series C Preferred Stock and such Parity Stock shall bear the
same ratio to each other as all accumulated dividends and all declared and unpaid dividends per share on the shares of Series C Preferred
Stock and such Parity Stock bear to each other; provided, however, that any unpaid dividends will continue to accumulate. The foregoing
limitation shall not apply to (i) purchases of fractional interests in shares of Parity Stock pursuant to the conversion or exchange provisions
of such shares of Parity Stock or any securities exchangeable for or convertible into shares of Parity Stock, (ii) the deemed purchase
or acquisition of fractional interests in shares of Parity Stock pursuant to the conversion or exchange provisions of such shares or the
security being converted or exchanged, (iii) the acquisition by the Corporation or any of its subsidiaries of record ownership in Parity
Stock for the beneficial ownership of any other Persons (other than for the Corporation or any of its subsidiaries), including as trustees
or custodians, and the payment of cash in lieu of fractional shares and (iv) the exchange or conversion of Parity Stock for or into other
Parity Stock (with the same or lesser aggregate liquidation amount) or Junior Stock and the payment of cash in lieu of fractional shares.
Subject only to the foregoing, and not otherwise,
such dividends (payable in cash, securities or other property) as may be determined by the Board of Directors (or an authorized committee
thereof) may be declared and paid on any securities, including Common Stock, from time to time out of any funds legally available for
such payment, and Holders shall not be entitled to participate in any such dividends declared on securities other than the Series C Preferred
Stock.
SECTION 5. Optional Redemption.
The Corporation may, at its option, redeem the Series C Preferred
Stock:
(a) in
whole or in part, from time to time, on or after July 15, 2026 at a redemption price in cash equal to $25,000 per share of Series C Preferred
Stock, subject to equitable adjustment as provided below; or
(b) in
whole but not in part, at any time within 120 days after the conclusion of any review or appeal process instituted by the Corporation
following the occurrence of a Ratings Event, or, if no review or appeal process is available or sought with respect to such Ratings Event,
at any time within 120 days after the occurrence of such Ratings Event, at a redemption price in cash equal to $25,500 per share of Series
C Preferred Stock, subject to equitable adjustment as provided below,
plus, in each case, all accumulated and unpaid dividends (whether or
not declared) to, but excluding, such Redemption Date; provided that, notwithstanding the foregoing, if a Redemption Date for any
shares of Series C Preferred Stock occurs subsequent to a Record Date and on or prior to the next succeeding Dividend Payment Date, then
the full amount of accumulated and unpaid dividends (whether or not declared) on such shares of Series C Preferred Stock to, but excluding,
such Dividend Payment Date shall be paid on such Dividend Payment Date to the Persons who were the Holders of such shares at the close
of business on such Record Date and such accumulated and unpaid dividends shall not be paid or required to be paid on the Redemption Date
and shall not constitute a part of the redemption price of such shares.
The redemption price shall be subject to equitable adjustment whenever
there shall occur a stock split, combination, reclassification or other similar event involving the Series C Preferred Stock. Any such
adjustments shall be determined in good faith by the Board of Directors (or an authorized committee thereof) and submitted by the Board
of Directors (or such authorized committee thereof) to the Transfer Agent.
SECTION 6. Redemption
Procedures.
If the Series C Preferred Stock is to be redeemed,
the notice of redemption shall be given by first class mail, postage prepaid, or by overnight air courier guaranteeing next day delivery,
to the Holders of the Series C Preferred Stock to be redeemed, mailed not less than 30 days, nor more than 60 days, prior to the Redemption
Date (provided that, if the Series C Preferred Stock is held in book-entry form evidenced by a global certificate held by
The Depository Trust Company (“DTC,” which term includes any successor thereto) or its nominee, the Corporation may
give such notice in any manner permitted or required by DTC. Each notice of redemption shall include a statement setting forth:
(a) the
Redemption Date;
(b) the
number of shares of Series C Preferred Stock to be redeemed and, if less than all the shares of Series C Preferred Stock held by such
Holder are to be redeemed, the number of such shares of Series C Preferred Stock to be redeemed from such Holder;
(c) the
redemption price;
(d) the
place or places where Holders may surrender certificates evidencing the Series C Preferred Stock for payment of the redemption price;
and
(e) that
dividends on the shares of Series C Preferred Stock to be redeemed shall cease to accumulate from and after such Redemption Date.
If notice of redemption of any shares of Series
C Preferred Stock has been given, and if the funds necessary for such redemption have been set aside by the Corporation for the benefit
of the Holders of the shares of Series C Preferred Stock so called for redemption, then, from and after the Redemption Date, dividends
shall cease to accumulate on such shares of Series C Preferred Stock, and such shares of Series C Preferred Stock shall no longer be deemed
outstanding and all rights of the Holders of such shares of Series C Preferred Stock shall terminate, except for (i) the right of the
Holders thereof to receive the amount payable with respect to such redemption, without interest and (ii) if the Redemption Date occurs
subsequent to a Record Date and on or prior to the next succeeding Dividend Payment Date, the right of the Persons who were the Holders
of such shares at the close of business on such Record Date to receive, on such Dividend Payment Date, the full amount of accumulated
and unpaid dividends (whether or not declared) on such shares to, but excluding, such Dividend Payment Date. Any funds unclaimed at the
end of one year from the Redemption Date shall, to the extent permitted by law, be released by the Corporation, after which time the Holders
of such Series C Preferred Stock so called for redemption shall look only to the Corporation for payment of the redemption price of such
Series C Preferred Stock. If a Redemption Date is not a Business Day, payment shall be made on the next succeeding Business Day, without
any interest, additional dividends, or other payment in lieu of interest or additional dividends accumulating with respect to this delay.
In case of any redemption of only part of the Series
C Preferred Stock at the time outstanding, the Series C Preferred Stock to be redeemed shall be selected either pro rata or by lot. If
fewer than all the shares represented by any certificate are redeemed, a new certificate shall be issued representing the unredeemed shares
without charge to the Holder thereof.
SECTION 7. Liquidation,
Winding-up or Dissolution.
(a) In
the event of any liquidation, winding-up or dissolution of the Corporation, whether voluntary or involuntary, each Holder shall be entitled
to receive the Liquidation Preference per share of the Series C Preferred Stock, plus an amount (the “Liquidation Dividend Amount”)
equal to accumulated and unpaid dividends (whether or not declared) on such shares to (but excluding) the date fixed for liquidation,
winding-up or dissolution, to be paid out of the assets of the Corporation legally available for distribution to its shareholders, after
payment or provision for the Corporation’s debts, obligations and liabilities, including debt and other liabilities owed to the
Corporation’s creditors, as required by applicable law, and to holders of shares of any class or series of capital stock of the
Corporation ranking senior to the Series C Preferred Stock with respect to distribution rights upon the Corporation’s liquidation,
winding-up or dissolution and before any payment or distribution is made to holders of any Junior Stock (including, without limitation,
Common Stock).
(b) If,
upon the voluntary or involuntary liquidation, winding-up or dissolution of the Corporation, the amounts payable with respect to (i) the
Liquidation Preference plus the Liquidation Dividend Amount on the shares of Series C Preferred Stock and (ii) the liquidation preference
of, and the amount of accumulated and unpaid dividends (to, but excluding, the date fixed for such liquidation, winding-up or dissolution)
on, all other Parity Stock are not paid in full, the Holders and all holders of any such other Parity Stock shall share equally and ratably
in any distribution of the Corporation’s assets in proportion to their respective liquidation preferences and amounts equal to the
accumulated and unpaid dividends to which they are entitled.
(c) After
the payment to any Holder of the full amount of the Liquidation Preference and the Liquidation Dividend Amount for each of such Holder’s
shares of Series C Preferred Stock, such Holder as such shall have no right or claim to any of the remaining assets of the Corporation.
(d) Neither
the sale, lease or exchange of all or substantially all of the Corporation’s assets, nor the Corporation’s merger or consolidation
into or with any other Person, shall be deemed to be the voluntary or involuntary liquidation, winding-up or dissolution of the Corporation.
SECTION 8. Voting
Rights.
(a) General.
Holders shall not have any voting rights except as set forth in this Section 8 and except as otherwise from time to time specifically
required by Michigan law. Without limitation to the foregoing, but subject to any limits and restrictions stated in the Articles, no vote
or consent of the Holders shall be required for the issuance of any additional shares of Series C Preferred Stock not exceeding the aggregate
number of shares authorized in this Certificate of Designation.
(b) Voting
Rights.
(i) Whenever
dividends on any shares of the Series C Preferred Stock or any other class or series of Preferred Stock that ranks on parity with the
Series C Preferred Stock as to payment of dividends, and upon which similar voting rights have been conferred and are exercisable, shall
have not been declared and paid for the equivalent of six quarterly dividend payments, whether or not for consecutive Dividend Periods
(a “Nonpayment Event”), the Holders of the Series C Preferred Stock (voting as a single class together with holders
of any and all other classes of authorized Preferred Stock having equivalent voting rights, whether or not the holders of such Preferred
Stock would be entitled to vote for the election of directors if such default in dividends did not exist) shall be entitled to vote as
a single class for the election of a total of two additional members of the Board of Directors (the “Preferred Directors”),
provided that the Board of Directors shall at no time include more than two Preferred Directors. In that event, the number of directors
on the Board of Directors shall automatically increase by two and, at the request of any Holder of Series C Preferred Stock or other Preferred
Stock with equivalent voting rights, a special meeting of the Holders of Series C Preferred Stock and the holders of any other class or
series of Preferred Stock that ranks on parity with Series C Preferred Stock as to payment of dividends and for which dividends have not
been paid shall be called for the election of the two directors (unless such request is received less than 90 days before the date fixed
for the next annual or special meeting of the shareholders, in which event such election shall be held at such next annual or special
meeting of shareholders), followed by such election at each subsequent annual meeting. These voting rights will continue until full dividends
have been paid regularly on the shares of the Series C Preferred Stock and any other class or series of Preferred Stock that ranks on
parity with the Series C Preferred Stock as to payment of dividends for at least four consecutive quarterly Dividend Periods or their
equivalent following the Nonpayment Event.
If and when full dividends have been paid
regularly on the Series C Preferred Stock and any other class or series of Preferred Stock that ranks on parity with the Series C Preferred
Stock as to payment of dividends for at least four consecutive quarterly Dividend Periods or their equivalent following a Nonpayment Event,
the Holders of the Series C Preferred Stock shall be divested of the foregoing voting rights (subject to revesting in the event of each
subsequent Nonpayment Event) and the term of office of each Preferred Director so elected shall terminate and the number of directors
on the Board of Directors shall automatically decrease by two. Any Preferred Director may be removed at any time without cause by the
Holders of a majority of the outstanding shares of the Series C Preferred Stock (together with holders of any and all other classes of
authorized Preferred Stock having equivalent voting rights, whether or not the holders of such Preferred Stock would be entitled to vote
for the election of directors if such default in dividends did not exist) when they have the voting rights described above. So long as
a Nonpayment Event continues, any vacancy in the office of a Preferred Director (other than prior to the initial election of the Preferred
Directors) may be filled by the written consent of the Preferred Director remaining in office or, if none remains in office, by a vote
of the Holders of the outstanding shares of Series C Preferred Stock (together with holders of any and all other class of authorized Preferred
Stock having equivalent voting rights, whether or not the holders of such Preferred Stock would be entitled to vote for the election of
directors if such default in dividends did not exist) to serve until the next annual meeting of shareholders. The Preferred Directors
shall each be entitled to one vote per director on any matter.
(ii) So
long as any shares of the Series C Preferred Stock are outstanding, in addition to any other vote or consent of shareholders required
by law or by the Articles, the affirmative vote or consent of the holders of not less than two-thirds of the total stated liquidation
preference (excluding accumulated and unpaid dividends thereon, and premiums or other similar amounts, if any) of all outstanding shares
of Series C Preferred Stock and all outstanding shares of any other series of Voting Preferred Stock (subject to Section 8(b)(iii)) at
the time outstanding and entitled to vote thereon, voting together as a single class, given in person or by proxy, either in writing without
a meeting or by vote at an annual or special meeting of such shareholders, shall be necessary for the Corporation to effect:
(A) any
amendment of the Articles, including this Certificate of Designation, so as to authorize, or increase the authorized amount of, any class
or series of Senior Stock;
(B) any
amendment of any provision of the Articles, other than this Certificate of Designation, so as to adversely affect the special rights,
preferences, privileges, restrictions, or voting powers of the Series C Preferred Stock; or
(C) any
consummation of a binding share exchange or reclassification involving the shares of the Series C Preferred Stock, or of a merger or consolidation
of the Corporation with or into another entity, unless in each case (x) the shares of the Series C Preferred Stock remain outstanding
or, in the case of any such merger or consolidation with respect to which the Corporation is not the surviving or resulting entity (or
the Series C Preferred Stock is otherwise exchanged or reclassified), are converted or reclassified into or exchanged for preferred stock
of the surviving or resulting entity or its ultimate parent, and (y) the shares of the Series C Preferred Stock that remain outstanding
or such shares of preferred stock, as the case may be, have rights, preferences, privileges and voting powers that, taken as a whole,
are not materially less favorable to the holders thereof than the rights, preferences, privileges and voting powers, taken as a whole,
of the Series C Preferred Stock immediately prior to the consummation of such transaction;
provided, however, that, for the avoidance
of doubt, (1) any increase in the amount of the Corporation’s authorized but unissued shares of Preferred Stock, (2) any increase
in the amount of the Corporation’s authorized Series C Preferred Stock or the issuance of any additional shares of the Series C
Preferred Stock or (3) the authorization or creation of any class or series of Parity Stock or Junior Stock, any increase in the amount
of authorized but unissued shares of such class or series of Parity Stock or Junior Stock or the issuance of any shares of such class
or series of Parity Stock or Junior Stock shall be deemed not to adversely affect (or to otherwise cause to be materially less favorable)
the rights, preferences, privileges, restrictions or voting powers of the Series C Preferred Stock, and shall not require the affirmative
vote or consent of the Holders, except as required pursuant to Michigan law.
(iii) If
any amendment, share exchange, reclassification, merger or consolidation specified in this Section 8(b) would adversely affect (or cause
to be materially less favorable, as applicable) the rights, preferences, privileges, restrictions or voting powers of one or more but
not all series of Voting Preferred Stock, then only the series of Voting Preferred Stock adversely affected (or the terms of which would
be materially less favorable, as applicable) and entitled to vote shall vote as a class in lieu of all other series of Voting Preferred
Stock.
(iv) Without
the consent of the Holders, to the fullest extent permitted by applicable law and so long as such action does not adversely affect the
special rights, preferences, privileges, restrictions or voting powers of the Series C Preferred Stock, the Corporation may amend, alter,
supplement, or repeal any terms of the Series C Preferred Stock, including by way of amendment to this Certificate of Designation, for
the following purposes:
(A) to
cure any ambiguity or mistake, or to correct or supplement any provision contained in this Certificate of Designation that may be defective
or inconsistent with any other provision contained in this Certificate of Designation;
(B) to
make any provision with respect to matters or questions relating to the Series C Preferred Stock that is not inconsistent with the provisions
of the Articles, including this Certificate of Designation; or
(C) to
waive any of the Corporation’s rights with respect thereto.
(v) Without
the consent of the Holders, to the fullest extent permitted by applicable law, the Corporation may amend, alter, supplement or repeal
any terms of the Series C Preferred Stock, including by way of amendment to this Certificate of Designation, in order to conform the terms
thereof to the description of the terms of the Series C Preferred Stock set forth under “Certain Terms of the Series C Preferred
Stock” in the Prospectus Supplement.
(c) Procedures
for Voting and Consents. The rules and procedures for calling and conducting any meeting of the Holders (including, without limitation,
the fixing of a Record Date in connection therewith), the solicitation and use of proxies at such a meeting, the obtaining of written
consents and any other procedural aspect or matter with regard to such a meeting or such consents shall be governed by any rules the Board
of Directors, in its discretion, may adopt from time to time, which rules and procedures shall conform to the requirements of the Articles,
the Bylaws, applicable law and the rules of any national securities exchange or other trading facility on which the Series C Preferred
Stock is listed or traded at the time.
SECTION 9. Transfer
Agent, Registrar, and Dividend Disbursing Agent. The duly appointed Transfer Agent, Registrar and Dividend Disbursing Agent for the
Series C Preferred Stock shall be Equiniti Trust Company d/b/a EQ Shareowner Services. The Corporation may, in its sole discretion, remove
any Person serving as the Transfer Agent, Registrar or Dividend Disbursing Agent; provided,
however, that prior to the effectiveness of any such removal the
Corporation shall appoint a successor Transfer Agent, Registrar or Dividend Disbursing Agent, as the case may be, who shall accept such
appointment prior to the effectiveness of such removal. Upon any such removal or appointment, the Corporation shall send notice thereof
to the Holders.
SECTION 10. Record Holders. To the fullest
extent permitted by applicable law, the Corporation and the Transfer Agent may deem and treat the Holder of any shares of the Series C
Preferred Stock as the true and lawful owner thereof for all purposes.
SECTION 11. Notices. The Corporation shall
send all notices or communications to Holders of the Series C Preferred Stock pursuant to this Certificate of Designation in writing by
first class mail, postage prepaid, or by overnight air courier guaranteeing next day delivery, to the Holders’ respective addresses
shown on the register for the Series C Preferred Stock (provided that, if the Series C Preferred Stock is held in book-entry
form evidenced by a global certificate held by DTC or its nominee, the Corporation shall be permitted to send notices or communications
to Holders pursuant to the procedures of DTC, and notices and communications that the Corporation sends in this manner will be deemed
to have been properly sent to such Holders in writing).
SECTION 12. No Preemptive Rights. The
Holders shall have no preemptive or preferential rights to purchase or subscribe for any stock, obligations, warrants or other securities
of the Corporation of any class or series.
SECTION13. Other Rights. The shares of
the Series C Preferred Stock shall not have any rights, preferences, privileges or voting powers or relative, participating, optional
or other special rights, or qualifications, limitations or restrictions thereof, other than as set forth herein or in the Articles or
as provided by applicable law.
SECTION 14. Stock Certificates.
(a) Shares
of the Series C Preferred Stock shall initially be represented by stock certificates substantially in the form set forth as Exhibit A
hereto.
(b) Stock
certificates representing shares of the Series C Preferred Stock shall be signed by the President or a Vice President, and by the Treasurer,
an Assistant Treasurer, the Secretary or an Assistant Secretary (each, an “Officer”), in accordance with the Bylaws
and applicable Michigan law, by manual or facsimile signature.
(c) A
stock certificate representing shares of the Series C Preferred Stock shall not be valid until manually countersigned by an authorized
signatory of the Transfer Agent and Registrar. Each stock certificate representing shares of the Series C Preferred Stock shall be dated
the date of its countersignature.
(d) If
any Officer of the Corporation who has signed a stock certificate no longer holds that office at the time the Transfer Agent and Registrar
countersigns the stock certificate, the stock certificate shall be valid nonetheless.
SECTION 15. Replacement Certificates.
If physical certificates are issued, and any of the Series C Preferred Stock certificates shall be mutilated, lost, stolen or destroyed,
the Corporation shall, at the expense of the Holder, issue, in exchange and in substitution for and upon cancellation of the mutilated
Series C Preferred Stock certificate, or in lieu of and substitution for the Series C Preferred Stock certificate lost, stolen or destroyed,
a new Series C Preferred Stock certificate of like tenor and representing an equivalent Liquidation Preference of shares of the Series
C Preferred Stock, but only upon receipt of evidence of such loss, theft or destruction of such Series C Preferred Stock certificate and
indemnity, if requested, reasonably satisfactory to the Corporation and the Transfer Agent.
SECTION 16. Miscellaneous.
(a) The
Corporation shall pay any and all stock transfer and documentary stamp taxes that may be payable in respect of any initial issuance or
delivery of shares of the Series C Preferred Stock or certificates representing such shares.
(b) The
Liquidation Preference shall be subject to equitable adjustment whenever there shall occur a stock split, combination, reclassification
or other similar event involving the Series C Preferred Stock. Such adjustments shall be determined in good faith by the Board of Directors
(or an authorized committee thereof) and submitted by the Board of Directors (or such authorized committee thereof) to the Transfer Agent.
(c) Shares
of Series C Preferred Stock that are redeemed, purchased or otherwise acquired by the Corporation shall be cancelled and shall revert
to authorized but unissued shares of Series C Preferred Stock which may be reissued from time to time by the Corporation, unless the Board
of Directors determines by resolution that the shares shall have the status of authorized but unissued shares of Preferred Stock undesignated
as to series and may with any and all other authorized but unissued shares of Preferred Stock be designated or redesignated and issued
or reissued, as the case may be, as part of any series of Preferred Stock.
SECTION 17. Withholding Taxes. Notwithstanding
anything to the contrary, if the Corporation or other applicable withholding agent pays withholding taxes or backup withholding on behalf
of the Holder or beneficial owner, the Corporation or other applicable withholding agent may, at its option, set off such payments against
payments of cash on the Series C Preferred Stock.
Exhibit A
[FORM OF FACE OF
4.200% CUMULATIVE REDEEMABLE PERPETUAL PREFERRED
STOCK, SERIES C CERTIFICATE]
THE SHARES OF 4.200% CUMULATIVE REDEEMABLE PERPETUAL PREFERRED
STOCK, SERIES C ARE SUBJECT TO REDEMPTION AT THE OPTION OF THE CORPORATION (AS DEFINED BELOW) AT THE TIMES AND REDEMPTION PRICES, AND
ON TERMS AND CONDITIONS, SET FORTH IN THE CERTIFICATE OF DESIGNATION (AS DEFINED BELOW).
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Certificate Number [ ]
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[Number] Shares of 4.200% Cumulative
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Redeemable Perpetual Preferred Stock, Series C
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CUSIP: 125896 829
ISIN: US1258968296
CMS ENERGY CORPORATION
(Formed under the laws of the State of Michigan)
4.200% Cumulative Redeemable Perpetual Preferred
Stock, Series C
(Liquidation Preference as specified below)
CMS Energy Corporation, a Michigan corporation
(the “Corporation”), hereby certifies that [_________] (the “Holder”) is the registered owner of
[_______] shares of fully paid and non-assessable shares of the Corporation’s designated 4.200% Cumulative Redeemable Perpetual
Preferred Stock, Series C, with a Liquidation Preference of $25,000.00 per share (the “Series C Preferred Stock”).
The shares of the Series C Preferred Stock are transferable on the books and records of the Registrar, in person or by a duly authorized
attorney, upon surrender of this certificate duly endorsed and in proper form for transfer. The rights, privileges, restrictions and other
terms and provisions of the Series C Preferred Stock represented hereby are and shall in all respects be subject to the provisions of
the Certificate of Designation of 4.200% Cumulative Redeemable Perpetual Preferred Stock, Series C of CMS Energy Corporation dated June
28, 2021, as the same may be amended from time to time (the “Certificate of Designation”). Capitalized terms used herein
but not defined shall have the meanings given them in the Certificate of Designation. The Corporation will provide a copy of the Certificate
of Designation to the Holder without charge upon written request to the Corporation at its principal place of business.
Reference is hereby made to the provisions
of the Series C Preferred Stock set forth on the reverse hereof and in the Certificate of Designation, which provisions shall for all
purposes have the same effect as if set forth at this place. If the terms of this certificate conflict with the terms of the Certificate
of Designation, then the terms of the Certificate of Designation will control to the extent of such conflict.
Upon receipt of this executed certificate,
the Holder is bound by the Certificate of Designation and is entitled to the benefits thereunder.
Unless the Transfer Agent and Registrar
have properly countersigned this certificate, these shares of the Series C Preferred Stock shall not be entitled to any benefit under
the Certificate of Designation or be valid or obligatory for any purpose.
[Remainder of Page Intentionally Left Blank]
Witness the facsimile seal of the Corporation and
the facsimile signatures of its duly authorized officers.
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Dated:
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CMS
ENERGY CORPORATION
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CMS ENERGY CORPORATION
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By:
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By:
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Name:
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Name
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Title:
[President or Vice President]
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Title: [Treasurer, Assistant Treasurer,
Secretary or Assistant Secretary]
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[Impression or Facsimile of Corporation Seal]
COUNTERSIGNATURE
These are shares of the Series C Preferred Stock referred
to in the within-mentioned Certificate of Designation.
Dated: [__], [__]
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Equiniti
Trust Company d/b/a EQ Shareowner Services,
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as Transfer
Agent and Registrar
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By:
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Name:
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Title:
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[FORM OF REVERSE OF
CERTIFICATE FOR SERIES C PREFERRED STOCK]
Cumulative cash dividends on each share of the Series C Preferred
Stock shall be payable at the rate provided in the Certificate of Designation.
The Corporation shall furnish without charge to
each Holder who so requests a full statement of the designation, relative rights, preferences and limitations of each class and series
of stock of the Corporation authorized to be issued, including the Series C Preferred Stock, in so far as the same shall have been prescribed
and the authority of the Board of Directors of the Corporation to designate and prescribe the relative rights, preferences and limitations
of other series. Such statement may be obtained from the Corporation at the Corporation’s principal executive offices, which, on
the Initial Issue Date of shares of the Series C Preferred Stock, were located at One Energy Plaza, Jackson, Michigan 49201.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers
the shares of the Series C Preferred Stock evidenced hereby to:
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(Insert assignee’s social security or taxpayer identification number, if any)
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(Insert address and zip code of assignee)
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and
irrevocably
appoints:
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__________________________
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as agent to transfer the shares of the Series C Preferred Stock evidenced hereby on the books of the Transfer Agent and Registrar. The agent may substitute another to act for him or her.
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Date:
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Signature:
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(Sign exactly as your name appears on the other side of this Certificate)
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Signature Guarantee:
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(Signature
must be guaranteed by an “eligible guarantor institution” that is a bank, stockbroker, savings and loan association or
credit union meeting the requirements of the Transfer Agent, which requirements include membership or participation in the Securities
Transfer Agents Medallion Program (“STAMP”)
or such other “signature guarantee program” as may be determined by the Transfer Agent in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended.)
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IN WITNESS WHEREOF, CMS ENERGY CORPORATION has
caused this Certificate of Designation to be signed by its Assistant Secretary on this 28th day of June, 2021.
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CMS ENERGY CORPORATION
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By:
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/s/ TERRY L. CHRISTIAN
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Name:
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Terry L. Christian
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Title:
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Assistant Secretary and authorized agent
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[Signature Page to Series C Certificate of Designation]
