FORM S-3ASR
As filed with the Securities and Exchange Commission on
November 12, 2008
Registration
No. 333-
UNITED STATES SECURITIES AND
EXCHANGE COMMISSION
Washington, D.C.
20549
Form S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
CMS ENERGY
CORPORATION
(Exact name of registrant as
specified in its charter)
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Michigan
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38-2726431
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer Identification
No.)
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One Energy Plaza, Jackson, Michigan 49201,
(517) 788-0550
(Address, including zip code,
and telephone number, including area code, of registrants
principal executive office)
Thomas J. Webb
Executive Vice President and Chief Financial Officer
CMS Energy Corporation
One Energy Plaza, Jackson, Michigan 49201
(517) 788-0351
(Name, address, including zip
code, and telephone number, including area code, of agent for
service)
It is respectfully requested
that the Commission send copies of all notices, orders and
communications to:
Shelley J. Ruckman, Esq.
Assistant General Counsel
CMS Energy Corporation
One Energy Plaza
Jackson, Michigan 49201
(517) 788-0305
Approximate date of commencement of proposed sale to the
public: From time to time after the effective
date of this registration statement, as determined by market
conditions.
If the only securities being registered on this form are being
offered pursuant to dividend or interest reinvestment plans,
check the following box.
o
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to
Rule 415 under the Securities Act of 1933, other than
securities offered only in connection with dividend or interest
reinvestment plans, check the following
box. þ
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act
of 1933, check the following box and list the Securities Act
registration statement number of the earlier effective
registration statement for the same offering.
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If this form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act of 1933, check the
following box and list the Securities Act registration statement
number of the earlier effective registration statement for the
same offering.
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If this form is a registration statement pursuant to General
Instruction I.D. or a post-effective amendment thereto that
shall become effective upon filing with the Commission pursuant
to Rule 462(e) under the Securities Act of 1933, check the
following
box. þ
If this form is a post-effective amendment to a registration
statement filed pursuant to General Instruction I.D. filed to
register additional securities or additional classes of
securities pursuant to Rule 413(b) under the Securities Act
of 1933, check the following box.
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Indicate by check mark whether the registrant is a large
accelerated filer, an accelerated filer, a non-accelerated
filer, or a smaller reporting company. See the definitions of
large accelerated filer, accelerated
filer and smaller reporting company in
Rule 12b-2
of the Exchange Act. (Check one):
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Large accelerated
filer þ
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Accelerated
filer o
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Non-accelerated
filer o
(Do not check if a smaller
reporting company)
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Smaller reporting
company o
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CALCULATION
OF REGISTRATION FEE
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Proposed Maximum
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Proposed Maximum
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Amount of
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Title of Securities
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Amount to be
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Offering Price per
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Aggregate Offering
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Registration
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to be Registered
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Registered
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Share(1)
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Price(1)
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Fee(1)
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Common stock, par value $.01 per share, of CMS Energy Corporation
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3,000,000
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$10.06
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$30,180,000
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$1,186.08
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(1) |
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Estimated solely for purposes of calculating the registration
fee and, pursuant to Rule 457(c) of the Securities Act of
1933 (the Securities Act), based upon the average of
the high and low sale prices of CMS Energy Corporations
common stock reported on the New York Stock Exchange as of
November 7, 2008. The payment of any additional filing fee
is deferred pursuant to Rules 456(b) and 457(r) of the
Securities Act. |
PROSPECTUS
3,000,000 Shares Of Common Stock, $.01 Par Value
CMS ENERGY CORPORATION
STOCK PURCHASE PLAN
We are pleased to offer the CMS Energy Corporation Stock
Purchase Plan as amended and restated (hereinafter referred to
as the Stock Purchase Plan or Plan), a
direct stock purchase plan designed to provide investors with a
convenient way to purchase shares of CMS Energy Corporation
common stock (CMS common stock) and to reinvest any
common stock dividends paid by CMS Energy Corporation (CMS
Energy) for the purchase of additional shares. Stock can
be purchased and any dividends paid can be reinvested with no
commissions or service charges. The Plan replaces and
assumes, by amendment and restatement, the CMS Energy
Corporation Stock Purchase Plan, as amended and restated
effective December 31, 2004.
Some of the key features of the Plan are:
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Enroll in the Plan at no charge with an initial investment of at
least $250 per account. (This $250 minimum will be waived if you
enroll in Automatic Investment for at least $50 for five
months.) The maximum total amount that you may invest in any
calendar year is $250,000.
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Through automatic investments deducted from your bank account of
at least $25 per transaction, you can increase your investment
in CMS common stock on an ongoing basis with no brokerage
charges.
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Reinvest any common stock dividends paid by CMS Energy toward
the purchase of additional shares of CMS common stock at no
charge.
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Directly deposit into your checking or savings account any
common stock dividends paid, putting your money to work
immediately and saving you a trip to the bank.
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Have your CMS common stock certificates held in safekeeping at
no charge.
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Give CMS common stock to others. (Gift acknowledgment forms are
available.)
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Sell shares of CMS common stock directly through the Plan with a
minimal brokerage commission.
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Periodically purchase additional CMS common stock with no
commissions or service charges.
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The CMS common stock is listed on the New York Stock Exchange
under the symbol CMS.
Investing in CMS common stock involves risks. See Risk
Factors on page 8 of this prospectus.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined whether this prospectus is accurate or
complete. Any representation to the contrary is a criminal
offense.
This prospectus relates to all shares acquired by participants
under the Plan. Shares available under the Plan will be shares
purchased on the open market by an independent agent selected by
us or newly issued shares. All shares acquired by participants
under the Plan are registered for sale pursuant to a
registration statement that we filed with the Securities and
Exchange Commission.
The date of this prospectus is November 12, 2008
TABLE OF
CONTENTS
ABOUT
THIS PROSPECTUS
This prospectus is part of a registration statement that we
filed with the Securities and Exchange Commission
(SEC) utilizing a shelf registration
process. Under this shelf registration process, we may, from
time to time, sell CMS common stock pursuant to the Plan. All
CMS common stock sold under the Plan will be sold under that
registration statement.
This prospectus provides you with a general description of the
Plan. The registration statement we filed with the SEC includes
exhibits that provide more detail on descriptions of the matters
discussed in this prospectus. Please carefully read this
prospectus, together with the registration statement, the
exhibits thereto and the additional information regarding us,
our business and the risks we face in our business and
operations referred to in Where You Can Find More
Information, before making an investment decision.
You should rely only on the information contained in or
incorporated by reference in this prospectus. We have not
authorized anyone to provide you with different information. We
are not making an offer of these securities in any state where
the offer is not permitted. You should not assume that the
information contained in or incorporated by reference in this
prospectus is accurate as of any date other than the date on the
front of this prospectus.
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DESCRIPTION
OF THE STOCK PURCHASE PLAN
Purpose
The purpose of the Stock Purchase Plan is to provide a
convenient, no-cost way to invest in CMS common stock and to
reinvest any common stock dividends paid by CMS Energy.
Administration
We administer the Plan through our Investor Services Department.
As Plan Administrator, Investor Services acts as transfer agent,
keeps records, sends statements and performs other duties
related to the Plan. We have the right to change the Plan
Administrator.
You can contact the Plan Administrator as follows.
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Written Inquiries:
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CMS Energy
Investor Services
One Energy Plaza
Jackson, MI 49201
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E-mail
Inquiries:
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invest@cmsenergy.com
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Telephone Inquiries:
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517.788.1868
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Fax Inquiries:
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517.788.1859
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Requests for Enrollment Packages:
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517.788.1868
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Web Site:
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www.cmsenergy.com/shareholder
(Secure Web forms are available on this Web
site.)
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Enroll Online:
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Click on Shareholder Services at
www.cmsenergy.com
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An agent, independent of us, makes the market purchases and
sales of CMS common stock for the Plan.
Eligibility
Anyone, whether or not a holder of CMS common stock, may be
eligible to participate in the Plan by following the enrollment
procedures.
Enrollment
If you are already a holder of CMS common stock with shares
registered in your name, you can enroll in the Plan by
completing and returning the Stock Purchase Plan Authorization
form along with any other required documents. If you are not
currently a registered shareholder, you can enroll in the Plan
by completing and returning the authorization form with an
initial investment of at least $250 per account. (This $250
minimum will be waived if you enroll in Automatic Investment for
at least $50 per month.) You can also enroll online using our
secure Web forms at www.cmsenergy.com/shareholder. The
maximum total amount that you may invest in any calendar year is
$250,000. To obtain authorization forms and other material,
please refer to the back cover of this document.
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Reports
You will receive a statement of account whenever there is
activity in your account or at least annually. You should
retain these statements to establish the cost basis for income
tax and other purposes. You will also receive communications
sent to all other shareholders, such as annual reports and proxy
statements.
Dividends
As of the date of this prospectus, CMS Energy is paying a common
stock dividend. You can reinvest some or all of any such common
stock dividends to purchase additional shares of CMS common
stock. If you prefer, you can have your dividends directly
deposited into your bank account or paid to you via check. No
fees will be charged for any of these options. Unless you select
a different option, we will reinvest any common stock dividends
paid. Common stock dividend payment dates will be declared by
our board of directors when and if deemed appropriate.
Automatic
Investment
You can make your initial investment or purchase additional
shares of CMS common stock through automatic deductions from an
account at a bank or other financial institution that is a
member of the National Automated Clearing House Association.
Initial investments must be either a one-time deduction of at
least $250 (these will be invested on the next investment weekly
date) or ongoing monthly deductions of at least $50 for five
months (these monthly investments will continue until cancelled
by you). To purchase additional shares, the minimum investment
amount is $25 per transaction. You choose the frequency of the
investment (semimonthly or monthly). The funds are transferred
from your checking or savings account on the banking day prior
to the investment date(s) you choose. You can enroll in
Automatic Investment using the appropriate section of the Stock
Purchase Plan Authorization form, by completing and returning an
Automatic Investment Authorization form or using our secure Web
forms on our Web site. There is no charge for this Automatic
Investment service. Automatic Investment authorization and
cancellation require a
ten-day
written notice. To request Automatic Investment forms, please
refer to the back cover of this document.
Additional
Investments
You can make investments by sending a check or money order to
the Plan Administrator at any time. Please do not send cash or
third party checks. The check or money order should be payable
in U.S. dollars to CMS Stock Plan, should be for at
least $25 and must be received by noon on the day of investment.
Include the top portion of your Stock Purchase Plan Statement of
Account or reference your account number on your check. Please
mail to the address indicated on the back cover of this
document. There is no commission or other charge for this
service. You may invest a maximum total amount of $250,000 in a
calendar year.
Investment
Dates and Prices
Investment purchases are on the following schedule:
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As soon as practicable after any CMS common stock dividend
payment date.
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On the first and 16th day of each month or as soon as
practicable thereafter.
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Or at least weekly, generally on Wednesday.
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No interest will be paid on amounts received but not yet
invested. Shares of CMS common stock purchased
will be either newly issued shares or, at our discretion, will
be purchased in the open market (New York Stock Exchange) by the
Plans independent agent. Neither CMS Energy nor the Plan
participants will have the authority to direct or control how or
when the independent agent purchases shares of CMS common stock.
We will credit newly issued shares of CMS common stock to your
account at the average of the high and low sale prices of CMS
common stock as reported on the New York Stock Exchange
Composite Tape for the trading day preceding the purchase
date. We will credit shares of CMS common stock purchased in
the open market to your account at the actual weighted average
price per share incurred. You will not pay brokerage commissions
for the shares purchased.
Sale of
Shares
You can request the sale of some or all of your CMS common stock
by completing the appropriate section of the form included on
your account statement and returning it to the Plan
Administrator. Sale requests can also be submitted via our Web
site (subject to the below guidelines). The Plan Administrator
will forward the sale instructions to the independent agent for
sale. Sales will generally be made weekly. The independent agent
will sell your shares, together with the shares of other Plan
participants, in the open market, and the price will be the
weighted average of all shares included in the sale.
We will pay to you by check the proceeds from the sale of your
shares, less a nominal brokerage fee (as of the date of this
prospectus, approximately $.05 per share). Checks are made
payable as your account is registered. Requests to change the
payee require Medallion Guaranteed signatures of all
owners, guaranteed by a financial institution participating in
the Medallion Guarantee program. Medallion Guaranteed signatures
also are required on all sale requests that are likely to exceed
a market value of $5,000. We cannot accept instructions to sell
your shares on a specific day, at a specific price, in a
specific manner, or equal to a specific dollar value. You
determine and indicate the number of shares to be sold.
To obtain sale request forms, please refer to the back cover of
this document.
Certificate
Safekeeping
Shares of CMS common stock that you purchase through the Plan
are held in your account in book-entry form. If you have
certificates for CMS common stock, you can deposit these
certificates with us for safekeeping. All safekeeping shares are
held in your account in book-entry form. This no-cost option
saves you the trouble of keeping certificates and avoids the
nuisance and expense of replacing certificates that become lost,
destroyed, or stolen.
Issuance
of Stock Certificates
You can obtain certificates for some or all of the full shares
in your account at no cost by completing the appropriate section
of the form included on your account statement and returning it
to the Plan Administrator. You can also request a stock
certificate on our Web site or by contacting us in writing as
indicated on the back cover of this document.
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Gifts and
Transfers of Shares
You can transfer ownership of some or all of the shares in your
account by providing the Plan Administrator with written, signed
transfer instructions. Signatures of all registered shareholders
must be Medallion Guaranteed by a financial institution
participating in the Medallion Guarantee program. To obtain
transfer request forms, please refer to the back cover of this
document. These forms are also available on the Web site.
Service
Fees
There are no fees, commissions, or service charges of any kind
for initial stock purchases, automatic investment, additional
stock purchases, transfers of stock, dividend reinvestment,
direct deposit of dividends, or issuance of stock certificates.
The only charge associated with the Plan is a minimal brokerage
commission for the sale of stock. As of the date of this
prospectus, the brokerage commission for the sale of stock is
approximately $0.05 per share.
Withdrawal
From the Stock Purchase Plan
You can terminate your participation in the Plan either by
completing and returning the appropriate section of the form
included on your account statement, by providing written, signed
notice to the Plan Administrator, or on our Web site. You can
terminate either by selling all of your shares or by requesting
a certificate for all of your whole shares and a check for the
market value of your fractional share. If a certificate or check
is to be issued in a name(s) other than the name(s) on your
account, your written request, signed by all owners, must be
Medallion Guaranteed by a financial institution participating in
the Medallion Guarantee program.
Additional
Information
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Any shares resulting from a stock split or stock dividend paid
on shares held in your Plan account will be credited to your
account in book-entry form. In the event of a rights offering,
you will receive rights based on the total number of whole
shares in your account.
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We will make available to you a proxy statement in connection
with each meeting of our shareholders, along with an opportunity
to vote the shares in your Plan account. Your proxy, when
properly submitted, will be voted as you indicate. Your shares
will not be voted unless you vote them.
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We reserve the right to suspend, modify or terminate the Plan at
any time. All participants will receive notice of any such
suspension, modification or termination. If we terminate the
Plan, certificates for whole shares held in your account will be
issued and a cash payment will be made for any fractional share.
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We participate in the Direct Registration System
(DRS). Participants in the Plan may choose to have
their direct registration/book-entry shares electronically
delivered to or from their brokerage accounts. Participants in
the Plan participating in the DRS can authorize their
broker/dealer to request electronic movement of their book-entry
shares. To effect such transactions, brokers will need to
include the following information: The CMS account number;
social security or taxpayer identification number of the
participant; the registered name(s) on the DRS account and the
number of DRS shares to be delivered. We will honor such
requests from any broker participating in the DRS.
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EMPLOYEE
PAYROLL DEDUCTION
Our employees (including part-time employees, but not temporary
or contract employees) and employees of our subsidiaries who
participate in the Plan can invest through the Plan by
submitting an Employee Payroll Deduction Authorization
Form. The Employee Payroll Deduction Authorization Form
authorizes the Plan to make payroll deductions of at least $6.25
per pay period for employees paid weekly and at least $12.50 per
pay period for employees paid semimonthly and to use the
deductions for the purchase of CMS common stock pursuant to the
Plan. Employees may, at any time, increase or decrease, within
the above limits, the amount of the deduction by notifying the
Plan Administrator at the address on the back cover of this
document. Payroll deduction authorizations previously provided
remain in effect unless the Plan Administrator is otherwise
notified.
All other aspects of the Plan apply to employees.
U.S.
FEDERAL INCOME TAXATION
The following discussion relates to certain federal income tax
consequences if you participate in the Plan. The full effect
upon you will depend upon your individual circumstances. We
suggest you discuss this material, as well as the impact of
state and local taxes, with your tax advisor.
You will be required to include in your gross income for federal
income tax purposes amounts equal to any dividends reinvested
through the Plan as if you had directly received the cash. You
will have no taxable income upon the purchase of shares under
the plan. You will not realize taxable gain or loss upon deposit
of shares into the Plan or the withdrawal of whole shares from
the Plan.
However, you will recognize gain or loss when you sell shares or
receive cash for your fractional shares. The gain or loss will
be equal to the difference between the amount received for the
shares or a fractional share (less any brokerage commissions)
and your tax basis in the shares. Gain or loss will generally be
a capital gain or loss; long-term or short-term depending on
your holding period.
Your tax basis will be the cost of your shares. The holding
period will begin the day after the shares are allocated to your
account. The statements you receive from us are your continuing
record of the cost of your purchases and should be retained for
tax purposes.
Generally, dividends will be taxable to you as ordinary income
to the extent of our current or accumulated earnings and profits
for federal income tax purposes. Dividends paid in taxable years
beginning on or before December 31, 2010 will be eligible
for a reduced rate of federal income taxation for individuals
(not exceeding 15%), provided that the dividend is paid with
respect to shares held for more than 60 days during the
120-day
period beginning 60 days before the ex-dividend date, the
individual is not obligated to make related payments with
respect to substantially similar or related property, and
certain other conditions are met. The amount of any dividends in
excess of earnings and profits will be a return of capital and,
as such, would not be taxable as ordinary income. In the event
of a return of capital distribution, we will provide you with
reports that will indicate that we have made a return of capital
distribution during the year. If you receive a return of capital
dividend, you must reduce the tax basis of the share on which
the dividend is paid by the amount of the dividend that is a
return of capital. If the amount that is a return of capital
exceeds the tax basis, the excess must be reported as capital
gains.
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If you fail to furnish a properly completed
Form W-9
or its equivalent, then the backup withholding
provisions of the Internal Revenue Code will cause us to
withhold the required tax from any dividends or sales proceeds.
Investors who are citizens or residents of a country other than
the United States are generally subject to a withholding tax on
any dividends paid. We are required to withhold from dividends
the appropriate amount determined in accordance with Internal
Revenue Service regulations. Where applicable, this withholding
tax is determined by treaty between the United States and the
country in which the investor resides.
CMS
ENERGY CORPORATION
The following description of our business does not purport to
be comprehensive. You should read the documents incorporated by
reference in this document before making an investment decision.
For additional information concerning CMS Energy and our
subsidiaries business and affairs, including our capital
requirements and external financing plans, pending legal and
regulatory proceedings and descriptions of certain laws and
regulations to which those companies are subject, you should
refer to the incorporated documents (see Where You Can
Find More Information and Documents Incorporated by
Reference below).
CMS Energy is an energy holding company operating through
subsidiaries in the United States, primarily in Michigan. Its
two principal subsidiaries are Consumers Energy Company
(Consumers) and CMS Enterprises Company
(Enterprises). Consumers is a public utility that
provides electricity
and/or
natural gas to almost 6.5 million of Michigans
10 million residents and serves customers in all 68
counties of Michigans lower peninsula. Enterprises,
through various subsidiaries and certain equity investments, is
engaged primarily in domestic independent power production. CMS
Energy manages its businesses by the nature of services each
provides and operates principally in three business segments:
electric utility, gas utility, and enterprises.
RISK
FACTORS
Before acquiring any of the securities that may be offered by
this prospectus, you should carefully consider the risks
discussed in the sections of CMS Energys Annual Report on
Form 10-K
for the year ended December 31, 2007 filed with the
Securities and Exchange Commission on February 21, 2008
entitled Risk Factors and Forward-Looking
Statements and Information, as updated by the sections of
CMS Energys
Forms 10-Q
for the quarter ended March 31, 2008 filed with the
Securities and Exchange Commission on May 5, 2008, the
quarter ended June 30, 2008 filed with the Securities and
Exchange Commission on August 5, 2008 and the quarter ended
September 30, 2008 filed with the Securities and Exchange
Commission on November 5, 2008 entitled Risk
Factors and Forward-Looking Statements and
Information, which are incorporated by reference in this
prospectus. You should also carefully consider all of the
information contained or incorporated by reference in this
prospectus or in any prospectus supplement before you invest in
the registrants securities. See Where You Can Find
More Information below.
WHERE YOU
CAN FIND MORE INFORMATION
We have filed with the Securities and Exchange Commission (the
SEC) a registration statement on
Form S-3
(the Registration Statement) under the Securities
Act of 1933, as amended (the Securities Act), with
respect to the securities offered in this prospectus. We have
not included certain portions of the Registration Statement in
this prospectus as permitted by the SECs rules and
regulations. Statements in this prospectus concerning the
provisions of any document filed as an exhibit to the
Registration Statement are not
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necessarily complete and are qualified in their entirety by
reference to such exhibit. For further information, you should
refer to the Registration Statement and its exhibits.
CMS Energy is subject to the informational requirements of the
Securities Exchange Act of l934, as amended (the Exchange
Act), and therefore files annual, quarterly and current
reports, proxy statements and other information with the SEC.
You may read and copy the Registration Statement (with
exhibits), as well as the reports and other information filed by
the registrant with the SEC, at the SECs Public Reference
Room at its principal offices at 100 F Street, N.E.,
Washington, D.C. 20549. You may obtain information on the
operation of the SECs Public Reference Room by calling
1-800-SEC-0330.
Information filed by us is also available at the SECs
Internet site at www.sec.gov. You can find additional
information about us on CMS Energys Web site at
www.cmsenergy.com. The information on this Web site is
not a part of this prospectus.
You should rely only on the information incorporated by
reference or provided in this prospectus or in any prospectus
supplements. We have not authorized anyone to provide you with
different information. You should not assume that the
information in this prospectus or any prospectus supplement is
accurate as of any date other than the date on the front of
those documents. This prospectus does not constitute an offer to
sell or a solicitation of an offer to buy the securities in any
jurisdiction to any person to whom it is unlawful to make such
offer or solicitation in such jurisdiction.
DOCUMENTS
INCORPORATED BY REFERENCE
The SEC allows us to incorporate by reference the
information that we file with them, which means that we can
disclose important information to you by referring you to those
documents. Information incorporated by reference is considered
to be part of this prospectus. Later information that we file
with the SEC (other than Current Reports on
Form 8-K
furnished under Item 2.02 or Item 7.01 of
Form 8-K)
will automatically update and supersede this information. The
registrant incorporates by reference into this prospectus the
documents listed below and any future filings (other than
Current Reports on
Form 8-K
furnished under Item 2.02 or Item 7.01 of
Form 8-K)
that the registrant makes with the SEC under Section 13(a),
13(c), 14 or 15(d) of the Exchange Act until the offerings
contemplated by this prospectus are terminated.
CMS
ENERGY
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Annual Report on
Form 10-K
for the year ended December 31, 2007
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Quarterly Reports on
Form 10-Q
for the quarters ended March 31, 2008, June 30, 2008
and September 30, 2008
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Current Reports on
Form 8-K
or
Form 8-K/A
filed January 11, 2008, January 30, 2008,
March 14, 2008 (SEC film number 08690529), March 21,
2008, June 11, 2008, June 12, 2008, September 12,
2008, September 16, 2008 and October 9, 2008 (only as
to the Item 2.03 disclosure)
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The description of CMS Energys Common Stock contained in
CMS Energys Registration Statement on
Form 8-B
dated May 6, 1987, as amended by Amendment No. 1
thereto filed November 22, 1996
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We will provide to each person, including any beneficial owner,
to whom a copy of this prospectus is delivered a copy of any or
all of the information that has been incorporated by reference
in this prospectus but
9
not delivered with this prospectus. We will provide this
information upon written or oral request at no cost to the
requester. You should direct your requests to:
CMS Energy Corporation
Attention: Investor Services
One Energy Plaza
Jackson, Michigan 49201
Telephone:
517-788-1868
SAFE
HARBOR STATEMENT UNDER THE
PRIVATE SECURITIES LITIGATION REFORM ACT OF 1995
This prospectus, any related prospectus supplement and the
documents that we incorporate by reference herein and therein
may contain statements that are statements concerning our
expectations, plans, objectives, future financial performance
and other items that are not historical facts. These statements
are forward looking statements within the meaning of
the Private Securities Litigation Reform Act of 1995. Forward
looking statements involve risks and uncertainties that may
cause actual results or outcomes to differ materially from those
included in the forward looking statements. In connection with
the safe harbor provisions of the Private Securities Litigation
Reform Act of 1995, the registrant is filing herein or
incorporating by reference cautionary statements identifying
important factors that could cause its actual results to differ
materially from those projected in forward looking statements
(as such term is defined in the Private Securities Litigation
Reform Act of 1995) made by or on behalf of the registrant.
Any statements that express or involve discussions as to
expectations, beliefs, plans, objectives, assumptions or future
events, performance or growth (often, but not always, through
the use of words or phrases such as may,
could, anticipates,
believes, estimates,
expects, intends, plans,
forecasts and similar expressions) are not
statements of historical facts and are forward looking. Forward
looking statements involve estimates, assumptions and
uncertainties that could cause actual results to differ
materially from those expressed in the forward looking
statements. Accordingly, any such statements are qualified in
their entirety by reference to, and are accompanied by, the
important factors described in the sections of CMS Energys
Annual Report on
Form 10-K
for the year ended December 31, 2007 filed with the SEC on
February 21, 2008 entitled Risk Factors and
Forward-Looking Statements and Information, as
updated by the sections of CMS Energys
Forms 10-Q
for the quarter ended March 31, 2008 filed with the SEC on
May 5, 2008, the quarter ended June 30, 2008 filed
with the SEC on August 5, 2008 and the quarter ended
September 30, 2008 filed with the SEC on November 5,
2008 entitled Risk Factors and Forward-Looking
Statements and Information, that could cause the
registrants actual results to differ materially from those
contained in forward looking statements of the registrant made
by or on behalf of the registrant.
All such factors are difficult to predict, contain uncertainties
that may materially affect actual results and are beyond the
control of the registrant. You are cautioned not to place undue
reliance on forward looking statements. Any forward looking
statement speaks only as of the date on which such statement is
made, and the registrant undertakes no obligation to update any
forward looking statement or statements to reflect events or
circumstances after the date on which such statement is made or
to reflect the occurrence of unanticipated events. New factors
emerge from time to time, and it is not possible for the
registrants management to predict all of such factors, nor
can such management assess the impact of each such factor on the
business of the registrant or the extent to which any factor, or
combination of factors, may cause actual results of the
registrant to differ materially from those contained in any
forward looking statements.
10
USE OF
PROCEEDS
Shares purchased for Plan participants with reinvested cash
dividends and other investments will, at our option, be either
shares newly issued by us or shares purchased in the open market
by the independent agent. When newly issued shares are used, we
will use the proceeds for general corporate purposes.
LIMITATION
OF LIABILITY
If you choose to participate in the Plan, neither we nor the
Plan Administrator can assure you of a profit or protect you
against a loss on the shares that you purchase under the Plan.
We, the Plan Administrator, and any independent agent will not
be liable for any act done in good faith or for the good faith
omission to act in connection with the Plan. This limitation of
liability does not constitute a waiver by any participant of his
or her rights under the federal securities laws.
Although the Plan provides for the reinvestment of common stock
dividends, the declaration and payment of common stock dividends
will continue to be determined by our board of directors at its
discretion, depending upon future earnings, the financial
condition of our company, and other factors. The amount and
timing of common stock dividends may be changed, or the payment
of dividends terminated, at any time without notice. This
prospectus supersedes all prior prospectuses relating to the
Plan.
LEGAL
OPINION
Opinion as to the legality of the securities offered herein has
been rendered for CMS Energy by Shelley J. Ruckman, Esq.,
Assistant General Counsel for CMS Energy.
EXPERTS
The consolidated financial statements and schedule of CMS Energy
Corporation as of and for the year ended December 31, 2007
and managements assessment of the effectiveness of
internal control over financial reporting as of
December 31, 2007 (which is included in Managements
Report on Internal Control over Financial Reporting)
incorporated in this prospectus by reference to CMS Energy
Corporations Annual Report on
Form 10-K
for the year ended December 31, 2007 have been so
incorporated in reliance on the report of PricewaterhouseCoopers
LLP, an independent registered public accounting firm, given on
the authority of said firm as experts in auditing and accounting.
The consolidated financial statements (including schedules
appearing therein) for 2006 and 2005 of CMS Energy Corporation
appearing in CMS Energy Corporations Annual Report
(Form 10-K)
for the year ended December 31, 2007 included therein, have
been audited by Ernst & Young LLP, independent
registered public accounting firm, as set forth in their report
thereon, included therein, and incorporated herein by reference,
which is based in part on the report of PricewaterhouseCoopers
LLP, independent registered public accounting firm for the
Midland Cogeneration Venture Limited Partnership (the MCV
Partnership). Such consolidated financial statements have
been incorporated herein by reference in reliance upon such
reports given on the authority of such firms as experts in
accounting and auditing.
The financial statements of the MCV Partnership, as of
November 21, 2006 and December 31, 2005 and for the
period ended November 21, 2006 and the year ended
December 31, 2005, not separately presented in this
prospectus, have been audited by PricewaterhouseCoopers LLP, an
independent registered public accounting firm, whose report
thereon is incorporated in this prospectus by reference to CMS
Energy Corporations Annual Report on
Form 10-K
for the year ended December 31, 2007. Such financial
statements, to the extent they have been included in the
financial statements of CMS Energy Corporation, have been so
incorporated in reliance on the report of such independent
registered public accounting firm given on the authority of said
firm as experts in auditing and accounting.
11
CMS Energy
Corporation
Stock Purchase Plan
Investor Services
One Energy Plaza
Jackson, MI 49201
CMS Energy Web
Site: www.cmsenergy.com/shareholder
(Secure Web forms are available on
this Web site.)
Enroll Online: Click on
Shareholder Services at www.cmsenergy.com
E-mail: invest@cmsenergy.com
Telephone: 517.788.1868
Fax: 517.788.1859
CMS
Energy Corporation
Stock
Purchase
Plan
A
Commision-free dividend reinvestment
and
stock purchase program
offered
by CMS Energy Corporation
Prospectus dated
November 12, 2008
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
|
|
ITEM 14.
|
Other
Expenses of Issuance and Distribution.
|
The estimated expenses in connection with the issuance and
distribution of the securities being registered, other than
underwriting discounts and commissions, are:
|
|
|
|
|
|
|
Estimated
|
|
|
|
Amount
|
|
|
SEC Registration Fee
|
|
$
|
1,186
|
*
|
Services of Independent Registered Public Accounting Firms
|
|
|
10,000
|
|
Services of Counsel
|
|
|
15,000
|
|
Printing Expenses
|
|
|
10,000
|
|
Listing Fees
|
|
|
5,000
|
|
Miscellaneous Expenses
|
|
|
10,000
|
|
|
|
|
|
|
Total
|
|
$
|
51,186
|
|
|
|
|
|
|
|
|
|
* |
|
Being paid in connection with the initial filing of this
registration statement. The payment of any additional filing fee
is deferred pursuant to Rules 456(b) and 457(r) of the
Securities Act. |
|
|
ITEM 15.
|
Indemnification
of Directors and Officers.
|
The following resolution was adopted by CMS Energys board
of directors on May 6, 1987:
RESOLVED: That effective March 1, 1987 the
Corporation shall indemnify to the full extent permitted by law
every person (including the estate, heirs and legal
representatives of such person in the event of the decease,
incompetency, insolvency or bankruptcy of such person) who is or
was a director, officer, partner, trustee, employee or agent of
the Corporation, or is or was serving at the request of the
Corporation as a director, officer, partner, trustee, employee
or agent of another corporation, partnership, joint venture,
trust or other enterprise, against all liability, costs,
expenses, including attorneys fees, judgments, penalties,
fines and amounts paid in settlement, incurred by or imposed
upon the person in connection with or resulting from any claim
or any threatened, pending or completed action, suit or
proceeding whether civil, criminal, administrative,
investigative or of whatever nature, arising from the
persons service or capacity as, or by reason of the fact
that the person is or was, a director, officer, partner,
trustee, employee or agent of the Corporation, or is or was
serving at the request of the Corporation as a director,
officer, partner, trustee, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise. Such right of indemnification shall not be deemed
exclusive of any other rights to which the person may be
entitled under statute, bylaw, agreement, vote of shareholders
or otherwise.
CMS Energys Bylaws provide:
The Corporation may purchase and maintain liability insurance,
to the full extent permitted by law, on behalf of any person who
is or was a director, officer, employee or agent of the
Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other
enterprise against any liability asserted against such person
and incurred by such person in any such capacity.
Article VIII of CMS Energys Restated Articles of
Incorporation, as amended, provides:
A director shall not be personally liable to the Corporation or
its shareholders for monetary damages for breach of duty as a
director except (i) for a breach of the directors
duty of loyalty to the Corporation or its shareholders,
(ii) for acts or omissions not in good faith or that
involve intentional misconduct or a knowing violation of law,
(iii) for a violation of Section 551(1) of the
Michigan Business Corporation Act, and (iv) for any
transaction from which the director derived an improper personal
benefit. No amendment to or repeal of this Article VIII,
and no modification to its provisions by law, shall apply to, or
have any effect upon, the liability or alleged liability of any
II-1
director of the Corporation for or with respect to any acts or
omissions of such director occurring prior to such amendment,
repeal or modification.
Article IX of CMS Energys Restated Articles of
Incorporation, as amended, provides:
Each director and each officer of the Corporation shall be
indemnified by the Corporation to the fullest extent permitted
by law against expenses (including attorneys fees),
judgments, penalties, fines and amounts paid in settlement
actually and reasonably incurred by him or her in connection
with the defense of any proceeding in which he or she was or is
a party or is threatened to be made a party by reason of being
or having been a director or an officer of the Corporation. Such
right of indemnification is not exclusive of any other rights to
which such director or officer may be entitled under any now or
hereafter existing statute, any other provision of these
Articles, bylaw, agreement, vote of shareholders or otherwise.
If the Business Corporation Act of the State of Michigan is
amended after approval by the shareholders of this
Article IX to authorize corporate action further
eliminating or limiting the personal liability of directors,
then the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the
Business Corporation Act of the State of Michigan, as so
amended. Any repeal or modification of this Article IX by
the shareholders of the Corporation shall not adversely affect
any right or protection of a director of the Corporation
existing at the time of such repeal or modification.
Sections 561 through 571 of the Michigan Business
Corporation Act provide CMS Energy with the power to indemnify
directors, officers, employees and agents against certain
expenses and payments, and to purchase and maintain insurance on
behalf of directors, officers, employees and agents.
Officers and directors are covered within specified monetary
limits by insurance against certain losses arising from claims
made by reason of their being directors or officers of CMS
Energy or of CMS Energys subsidiaries, and CMS
Energys officers and directors are indemnified against
such losses by reason of their being or having been directors of
officers of another corporation, partnership, joint venture,
trust or other enterprise at CMS Energys request. In
addition, CMS Energy has indemnified each of its present
directors by contracts that contain affirmative provisions
essentially similar to those in Sections 561 through 571 of
the Michigan Business Corporation Act cited above.
Reference is made to the Exhibit Index filed as part of
this Registration Statement.
|
|
|
|
(a)
|
The undersigned registrant hereby undertakes:
|
|
|
|
|
(1)
|
To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
|
|
|
|
|
(i)
|
To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933;
|
|
|
|
|
(ii)
|
To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amendment hereof) which, individually or
in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to
Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than 20 percent change in the
maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the
effective registration statement;
|
|
|
|
|
(iii)
|
To include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
|
II-2
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and
(a)(1)(iii) of this section do not apply if the registration
statement is on
Form S-3
and the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with
or furnished to the Commission by the registrant pursuant to
section 13 or section 15(d) of the Securities Exchange
Act of 1934 that are incorporated by reference in the
registration statement, or is contained in a form of prospectus
filed pursuant to Rule 424(b) that is part of the
registration statement.
|
|
|
|
(2)
|
That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide
offering thereof.
|
|
|
(3)
|
To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
|
|
|
(4)
|
That, for the purpose of determining liability under the
Securities Act of 1933 to any purchaser:
|
|
|
|
|
(i)
|
Each prospectus filed by the registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed prospectus was
deemed part of and included in the registration
statement; and
|
|
|
|
|
(ii)
|
Each prospectus required to be filed pursuant to Rule 424(b)(2),
(b)(5), or (b)(7) as part of a registration statement in
reliance on Rule 430B relating to an offering made pursuant
to Rule 415(a)(1)(i), (vii), or (x) for the purpose of
providing the information required by section 10(a) of the
Securities Act of 1933 shall be deemed to be part of and
included in the registration statement as of the earlier of the
date such form of prospectus is first used after effectiveness
or the date of the first contract of sale of securities in the
offering described in the prospectus. As provided in
Rule 430B, for liability purposes of the issuer and any
person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement
relating to the securities in the registration statement to
which that prospectus relates, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof. Provided, however, that no statement made
in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement
or prospectus that is part of the registration statement will,
as to a purchaser with a time of contract of sale prior to such
effective date, supersede or modify any statement that was made
in the registration statement or prospectus that was part of the
registration statement or made in any such document immediately
prior to such effective date.
|
|
|
|
|
(5)
|
That, for the purpose of determining liability of the registrant
under the Securities Act of 1933 to any purchaser in the initial
distribution of the securities, the undersigned registrant
undertakes that in a primary offering of securities of the
undersigned registrant pursuant to this registration statement,
regardless of the underwriting method used to sell the
securities to the purchaser, if the securities are offered or
sold to such purchaser by means of any of the following
communications, the undersigned registrant will be a seller to
the purchaser and will be considered to offer or sell such
securities to such purchaser:
|
|
|
|
|
(i)
|
Any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed
pursuant to Rule 424;
|
|
|
|
|
(ii)
|
Any free writing prospectus relating to the offering prepared by
or on behalf of the undersigned registrant or used or referred
to by the undersigned registrant;
|
|
|
|
|
(iii)
|
The portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and
|
|
|
|
|
(iv)
|
Any other communication that is an offer in the offering made by
the undersigned registrant to the purchaser.
|
II-3
|
|
|
|
(b)
|
The undersigned registrant hereby undertakes that, for purposes
of determining any liability under the Securities Act of 1933,
each filing of the registrants annual report pursuant to
Section 13(a) or Section 15(d) of the Securities
Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plans annual report pursuant to
Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration
statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial
bona fide offering thereof.
|
|
|
|
|
(c)
|
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors,
officers and controlling persons of the registrant pursuant to
the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the
event that a claim for indemnification against such liabilities
(other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the
registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in
the Act and will be governed by the final adjudication of such
issue.
|
II-4
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, CMS
Energy Corporation, the Registrant, certifies that it has
reasonable grounds to believe that it meets all of the
requirements for filing on
Form S-3
and has duly caused this registration statement to be signed on
its behalf by the undersigned, thereunto duly authorized, in the
City of Jackson, State of Michigan, on the
12th day
of November, 2008.
CMS Energy Corporation
(Registrant)
Name: Thomas J. Webb
|
|
|
|
Title:
|
Executive Vice President and Chief Financial Officer
|
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons
in the capacities indicated on the
12th day
of November, 2008.
|
|
|
|
|
Name
|
|
Title
|
|
|
|
|
(i) Principal executive officer:
|
|
|
|
|
|
/s/ David
W. Joos
(David
W. Joos)
|
|
President and Chief Executive Officer
|
|
|
|
(ii) Principal financial officer:
|
|
|
|
|
|
/s/ Thomas
J. Webb
(Thomas
J. Webb)
|
|
Executive Vice President and Chief Financial Officer
|
|
(iii) Controller or principal accounting
officer:
|
|
|
|
/s/ Glenn
P. Barba
(Glenn
P. Barba)
|
|
Vice President, Controller and Chief Accounting Officer
|
|
|
|
(iv) Directors:
|
|
|
|
|
|
*
(Merribel
S. Ayres)
|
|
Director
|
|
|
|
*
(Jon
E. Barfield)
|
|
Director
|
|
|
|
*
(Richard
M. Gabrys)
|
|
Director
|
|
|
|
*
(David
W. Joos)
|
|
Director
|
II-5
|
|
|
|
|
Name
|
|
Title
|
|
|
|
|
*
(Philip
R. Lochner, Jr.)
|
|
Director
|
|
|
|
*
(Michael
T. Monahan)
|
|
Director
|
|
|
|
*
(Joseph
F. Paquette, Jr.)
|
|
Director
|
|
|
|
*
(Percy
A. Pierre)
|
|
Director
|
|
|
|
*
(Kenneth
L. Way)
|
|
Director
|
|
|
|
*
(Kenneth
Whipple)
|
|
Director
|
|
|
|
*
(John
B. Yasinsky)
|
|
Director
|
|
|
|
|
|
|
|
|
|
*By: /s/ Thomas
J. Webb
Name: Thomas
J. Webb
Title: Attorney-in-fact
|
II-6
EXHIBIT INDEX
Exhibits listed below that have been previously filed with the
SEC are incorporated herein by reference with the same effect as
if filed with this Registration Statement.
|
|
|
|
|
|
|
|
|
|
|
|
|
Previously Filed
|
|
|
|
|
|
|
With File
|
|
As Exhibit
|
|
|
|
|
Exhibits
|
|
Number
|
|
Number
|
|
|
|
Description
|
|
|
4
|
.1
|
|
1-9513
|
|
(99)(a)
|
|
|
|
Restated Articles of Incorporation of CMS Energy
(Form 8-K
filed June 3, 2004)
|
|
4
|
.2
|
|
1-9513
|
|
(3)(b)
|
|
|
|
CMS Energy Corporation Bylaws, amended and restated as of
August 10, 2007 (3rd qtr. 2007
Form 10-Q)
|
|
4
|
.3.1
|
|
1-9513
|
|
(4)(i)
|
|
|
|
Certificate of Designation of 4.50% Cumulative Convertible
Preferred Stock of CMS Energy Corporation dated as of
December 2, 2003 (2003
Form 10-K)
|
|
4
|
.3.2
|
|
1-9513
|
|
3.1
|
|
|
|
Certificate of Designation of 4.50% Cumulative Convertible
Preferred Stock, Series B of CMS Energy Corporation
(Form 8-K
filed December 22, 2004)
|
|
4
|
.4.1
|
|
33-47629
|
|
(4)(a)
|
|
|
|
Indenture dated as of September 15, 1992 between CMS Energy
and The Bank of New York Mellon (formerly NBD Bank), as Trustee
(Form S-3
filed May 1, 1992)
|
|
4
|
.4.2
|
|
333-58686
|
|
(4)(a)
|
|
|
|
Indentures Supplemental thereto: 11th dated as of 3/29/01
(Form S-8
filed April 11, 2001)
|
|
4
|
.4.3
|
|
1-9513
|
|
(4)(d)(i)
|
|
|
|
15th dated as of 9/29/04 (2004
Form 10-K)
|
|
4
|
.4.4
|
|
1-9513
|
|
(4)(d)(ii)
|
|
|
|
16th dated as of 12/16/04 (2004
Form 10-K)
|
|
4
|
.4.5
|
|
1-9513
|
|
4.2
|
|
|
|
17th dated as of 12/13/04
(Form 8-K
filed December 13, 2004)
|
|
4
|
.4.6
|
|
1-9513
|
|
4.2
|
|
|
|
18th dated as of 1/19/05
(Form 8-K
filed January 20, 2005)
|
|
4
|
.4.7
|
|
1-9513
|
|
4.2
|
|
|
|
19th dated as of 12/13/05
(Form 8-K
filed December 15, 2005)
|
|
4
|
.58
|
|
1-9513
|
|
4.2
|
|
|
|
20th dated as of 7/3/07
(Form 8-K
filed July 5, 2007)
|
|
4
|
.4.9
|
|
1-9513
|
|
4.3
|
|
|
|
21st dated as of 7/3/07
(Form 8-K
filed July 5, 2007)
|
|
4
|
.4.10
|
|
33-47629
|
|
(4)(a)
|
|
|
|
Form of Senior Debt Securities (included in Exhibit 4.4.1)
|
|
4
|
.5.1
|
|
1-9513
|
|
(4a)
|
|
|
|
Indenture dated as of June 1, 1997, between CMS Energy and
The Bank of New York Mellon, as trustee
(Form 8-K
filed July 1, 1997)
|
|
4
|
.5.2
|
|
1-9513
|
|
(4b)
|
|
|
|
Indentures Supplemental thereto: 1st dated as of 6/20/97
(Form 8-K
filed July 1, 1997)
|
|
4
|
.5.3
|
|
1-9513
|
|
(4a)
|
|
|
|
Form of Subordinated Debt Securities (included in
Exhibit 4.5.1)
|
|
4
|
.6.1
|
|
1-9513
|
|
10.2
|
|
|
|
$300 million Seventh Amended and Restated Credit Agreement
dated as of April 2, 2007 among CMS Energy Corporation, the
Banks, the Administrative Agent, Collateral Agent, Syndication
Agent and Documentation Agents all defined therein
(Form 8-K
filed April 3, 2007)
|
|
4
|
.6.2
|
|
1-9513
|
|
(10)(a)
|
|
|
|
Amendment thereto: Amendment No. 1 dated December 19,
2007 to $300 million Seventh Amended and Restated Credit
Agreement dated as of April 2, 2007 among CMS Energy
Corporation, the Banks, the Administrative Agent, Collateral
Agent, Syndication Agent and Documentation Agents all defined
therein (2007
Form 10-K)
|
|
4
|
.6.3
|
|
1-9513
|
|
10.1
|
|
|
|
Assumption thereto: Assumption and Acceptance dated
January 8, 2008
(Form 8-K
filed January 11, 2008)
|
|
4
|
.7
|
|
1-9513
|
|
(10)(b)
|
|
|
|
Fourth Amended and Restated Pledge and Security Agreement dated
as of April 2, 2007 among CMS Energy and Collateral Agent,
as defined therein (2007
Form 10-K)
|
|
4
|
.8
|
|
1-9513
|
|
(10)(c)
|
|
|
|
Cash Collateral Agreement dated as of April 2, 2007, made
by CMS Energy to the Administrative Agent for the lenders and
Collateral Agent, as defined therein (2007
Form 10-K)
|
|
4
|
.9
|
|
333-27849
|
|
(4)(o)
|
|
|
|
Form of Purchase Contract Agreement between CMS Energy and
Purchase Contract Agent (including as Exhibit A the form of
the Security Certificate)
(Form S-3/A
filed June 13, 1997)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Previously Filed
|
|
|
|
|
|
|
With File
|
|
As Exhibit
|
|
|
|
|
Exhibits
|
|
Number
|
|
Number
|
|
|
|
Description
|
|
|
4
|
.10
|
|
333-51932
|
|
(4)(f)
|
|
|
|
Certificate of Trust of CMS Energy Trust IV
(Form S-3
filed December 15, 2000)
|
|
4
|
.11
|
|
333-51932
|
|
(4)(g)
|
|
|
|
Form of Amended and Restated Trust Agreement of CMS Energy
Trust IV
(Form S-3
filed December 15, 2000)
|
|
4
|
.12
|
|
333-51932
|
|
(4)(h)
|
|
|
|
Certificate of Trust of CMS Energy Trust V
(Form S-3
filed December 15, 2000)
|
|
4
|
.13
|
|
333-51932
|
|
(4)(i)
|
|
|
|
Form of Amended and Restated Trust Agreement of CMS Energy
Trust V
(Form S-3
filed December 15, 2000)
|
|
4
|
.14
|
|
333-51932
|
|
(4)(k)
|
|
|
|
Form of Trust Preferred Security (included in
Exhibit 4.13)
|
|
4
|
.15
|
|
333-51932
|
|
(4)(l)
|
|
|
|
Form of Trust Preferred Securities Guarantee Agreement of
CMS Energy Trust IV
(Form S-3
filed December 15, 2000)
|
|
4
|
.16
|
|
333-51932
|
|
(4)(m)
|
|
|
|
Form of Trust Preferred Securities Guarantee Agreement of
CMS Energy Trust V
(Form S-3
filed December 15, 2000)
|
|
5
|
.1
|
|
|
|
|
|
|
|
Opinion of Shelley J Ruckman, Assistant General Counsel for CMS
Energy, regarding the legality of the CMS Energy Common Stock
|
|
23
|
.1
|
|
|
|
|
|
|
|
Consent of Shelley J. Ruckman, Assistant General Counsel for CMS
Energy (included in Exhibit 5.1)
|
|
23
|
.2
|
|
|
|
|
|
|
|
Consent of PricewaterhouseCoopers LLP
|
|
23
|
.3
|
|
|
|
|
|
|
|
Consent of PricewaterhouseCoopers LLP
|
|
23
|
.4
|
|
|
|
|
|
|
|
Consent of Ernst & Young LLP
|
|
24
|
.1
|
|
|
|
|
|
|
|
Power of Attorney
|
|
99
|
.1
|
|
|
|
|
|
|
|
CMS Energy Corporation Stock Purchase Plan, amended and restated
as of November 12, 2008
|