EXHIBIT 1(d)
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT made as of January 1, 2002, by and
between RCG Equity Finance, a division of Ramius Securities, LLC, having its
principal office at 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000
("Assignor"), Xxxxxxx Xxxxxxx Securities Corporation, having its principal
office at 000 Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 ("Assignee"),
and CMS Energy Corporation, a corporation organized and existing under the laws
of the State of Michigan (the "Company"). Capitalized terms used herein and not
otherwise defined shall have the meanings ascribed thereto in the Sales
Agreement (as defined below).
WHEREAS, Assignor is, as of the date hereof, a party to that certain
Sales Agreement dated as of August 27, 2001, between the Company and the
Assignor (the "Sales Agreement"); and
WHEREAS, Assignor wishes to assign all of its rights and obligations in
and under the Sales Agreement to Assignee, and Assignee wishes to accept such
assignment and assume all such obligations, effective the date hereof.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Assignor, Assignee and the Company
agree as follows:
1. Assignor hereby transfers and assigns all of its rights,
obligations, protections, indemnities and interests in and under the Sales
Agreement arising on and after the date hereof to Assignee.
2. Assignee hereby accepts such assignment, irrevocably
assumes all liabilities and obligations in respect thereof arising on and after
the date hereof, and agrees to be bound by the provisions of the Sales
Agreement.
3. The Company hereby consents to the foregoing assignment and
assumption and both the Assignee and the Company hereby agree to release
Assignor, its affiliates, parents and subsidiaries and their respective members,
partners, directors, officers, employees and agents from any actions and causes
of action, suits, debts, covenants, contracts, agreements, judgments, charges,
claims and demands whatsoever which arise on or after the date of this
Agreement. For the avoidance of doubt, in the event any of the foregoing, or any
liabilities or obligations with respect to any of the foregoing, relate to
liabilities or obligations arising out of the sale of shares of the Company's
stock to the public, it shall be deemed to have arisen "on or after the date of
this Agreement" only if the shares of Stock to which the liabilities or
obligations relate were sold to the public on or after the date of this
Agreement. The Company hereby consents to the foregoing assignment and
assumption. As promptly as practicable after the date of this Agreement, the
Company will file a prospectus supplement as a post effective amendment to the
Registration Statement naming Xxxxxxx Xxxxxxx Securities Corporation as the
Sales Manager under the Sales Agreement. The Company will use its best efforts
to cause such post-effective amendment to the Registration Statement to become
effective as promptly as possible thereafter.
4. The parties hereto agree to take such further action as may
be needed to implement the provisions of this Agreement.
5. This Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof and may be amended only
by a writing executed by all parties.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the undersigned have each executed this Assignment
and Assumption Agreement as of the date first written above.
ASSIGNOR:
RCG Equity Finance, a division of
RAM1US SECURITIES, LLC
By: /s/ Xxxxxx Xxxxxxx
-----------------------------------------
Name: Xxxxxx Xxxxxxx
Title: General Counsel
ASSIGNEE:
XXXXXXX XXXXXXX SECURITIES CORPORATION
By: /s/ Xxxx Xxxxx
-----------------------------------------
Name: Xxxx Xxxxx
Title: Managing Director
COMPANY:
CMS ENERGY CORPORATION
By: /s/ Xxxx X. Xxxxxx
-----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Executive Vice President,
Chief Financial Officer and
Chief Administrative Officer
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