0000201533-95-000102.txt : 19950914
0000201533-95-000102.hdr.sgml : 19950914
ACCESSION NUMBER: 0000201533-95-000102
CONFORMED SUBMISSION TYPE: S-3
PUBLIC DOCUMENT COUNT: 6
REFERENCES 429: 033-09732
FILED AS OF DATE: 19950912
SROS: NYSE
FILER:
COMPANY DATA:
COMPANY CONFORMED NAME: CMS ENERGY CORP
CENTRAL INDEX KEY: 0000811156
STANDARD INDUSTRIAL CLASSIFICATION: ELECTRIC & OTHER SERVICES COMBINED [4931]
IRS NUMBER: 382726431
STATE OF INCORPORATION: MI
FISCAL YEAR END: 1231
FILING VALUES:
FORM TYPE: S-3
SEC ACT: 1933 Act
SEC FILE NUMBER: 033-62573
FILM NUMBER: 95573206
BUSINESS ADDRESS:
STREET 1: FAIRLANE PLZ SOUTH STE 1100
STREET 2: 330 TOWN CENTER DR
CITY: DEARBORN
STATE: MI
ZIP: 48126
BUSINESS PHONE: 3134369261
MAIL ADDRESS:
STREET 1: FAIRLANE PLAZA SOUTH, SUITE 1100
STREET 2: 330 TOWN CENTER DRIVE
CITY: DEARBORN
STATE: MI
ZIP: 48126
S-3
1
BODY OF S-3 FILING
As filed with the Securities and Exchange Commission on September 12, 1995
Registration No. 33-____
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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)
MICHIGAN 38-2726431
(State or other jurisdiction (I.R.S. Employer Identification
of incorporation or organization) No.)
Fairlane Plaza South, Suite 1100
330 Town Center Drive
Dearborn, Michigan 48126
(313) 436-9200
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
----------------
THOMAS A. McNISH
Vice President and Secretary
212 West Michigan Avenue
Jackson, Michigan 49201
(517) 788-1030
(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:
DENISE M. STURDY, ESQ.
CMS ENERGY CORPORATION
Fairlane Plaza South, Suite 900
330 Town Center Drive
Dearborn, MI 48126
(313) 436-9602
----------------
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of the Registration Statement.
----------------
If the only securities being registered on this Form are being
offered pursuant to dividend or interest reinvestment plans, please check
the following box.
---
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.
X
---
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check
the following box and list the Securities Act registration statement
number of the earlier effective registration statement for the same
offering.
---
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering.
---
If delivery of the prospectus is expected to be made pursuant to
Rule 434, please check the following box.
---
CALCULATION OF REGISTRATION FEE
__________________________________________________________________________________________________________________
Title of each class Amount Proposed Proposed Amount of
of securities to be being maximum offering maximum aggregate registration
registered registered (3) price per share offering price(1)(2) fee(1)(2)
__________________________________________________________________________________________________________________
Common Stock,
$.01 par value 4,519,106 Shares $ 24.25 $109,588,320 $37,789.08
Class G Common Stock,
no par value 5,000,000 Shares $ 18.25 $91,250,000 $31,465.52
__________________________________________________________________________________________________________________
(1) Estimated solely for the purpose of calculating the registration fee and, pursuant to Rule 457(c) of the Securities
Act of 1933, based upon the average of the high and low sale prices of the common stock, par value $.01 per share,
of CMS Energy Corporation, on the New York Stock Exchange on September 8, 1995.
(2) Estimated solely for the purpose of calculating the registration fee and, pursuant to Rule 457(c) of the Securities
Act of 1933, based upon the average of the high and low sale prices of the Class G common stock, no par value, of
CMS Energy Corporation, on the New York Stock Exchange on September 8, 1995.
(3) Pursuant to Rule 429 of the Securities Act of 1933, as amended, the Prospectus contained herein also relates to the
5,000,000 shares of Common Stock, $.01 par value, (originally registered as Consumers Power Company Common Stock,
$10 par value, prior to a conversion) of the registrant contained in the Registration Statement on Form S-3
(No. 33-9732) of which 3,480,894 shares remain outstanding and are being carried forward. The filing fee
associated with the securities carried forward and previously paid with the earlier registration statement is
$9,528.95.
----------------
The Registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that
this registration statement shall thereafter become effective in
accordance with Section 8(a) of the Securities Act of 1933 or until the
registration statement shall become effective on such date as the
Commission, acting pursuant to said Section 8(a), may determine.
PROSPECTUS (SUBJECT TO COMPLETION)
ISSUED SEPTEMBER 12, 1995
CMS ENERGY CORPORATION
8,000,000 Shares
COMMON STOCK
5,000,000 Shares
CLASS G COMMON STOCK
STOCK PURCHASE PLAN
CMS Energy Corporation (the "Corporation") hereby offers participation
in its Stock Purchase Plan (the "Plan"). The Plan is designed to provide
investors with a convenient way to purchase shares of all classes of the
Corporation's Common Stock, consisting as of the date of this Prospectus,
of the Corporation's Common Stock, $.01 par value, ("CMS Energy Common
Stock") and the Corporation's Class G Common Stock, no par value, ("Class
G Common Stock") (collectively, "Common Stock"), and to reinvest all or a
portion of the Corporation's Common Stock dividends or Consumers Power
Company's preferred stock dividends ("Preferred Stock"), in shares of
Common Stock. All reinvested dividends on Preferred Stock will be
invested in shares of CMS Energy Common Stock. All reinvested dividends
on Common Stock will be invested in shares of the same class of Common
Stock. Participants do not pay any brokerage fee for purchases of any
class of Common Stock under this Plan.
Participants in the Stock Purchase Plan may:
* Reinvest all or a portion of Common Stock or Preferred Stock
dividends in shares of the appropriate class of Common Stock.
* Make an initial investment of at least $500 in any class of
Common Stock or, if already a holder of Preferred Stock or
Common Stock, make optional investments at any time of at least
$25 in any class of Common Stock up to a maximum $120,000 per
calendar year per class of Common Stock.
* Receive, upon written request, certificates for whole shares of
Common Stock credited to their Plan accounts.
* Deposit certificates representing Common Stock into the Plan for
safekeeping.
* Sell shares of Common Stock credited to their Plan accounts
through the Plan.
Shares of Common Stock will be purchased under the Plan, at the option
of the Corporation, from newly issued shares of the Corporation or shares
purchased in the open market. Any open market purchases will be effected
through an Independent Agent (as hereinafter defined) selected by the
Corporation. The CMS Energy Common Stock and the Class G Common Stock are
listed on the New York Stock Exchange ("NYSE") under the symbols "CMS" and
"CPG," respectively. On September 8, 1995 the closing price on the NYSE
of the CMS Energy Common Stock was $24 3/8 and the Class G Common Stock
was $18 1/4.
The purchase price of newly issued shares of Common Stock purchased
under the Plan for an Investment Date (as hereinafter defined) will be the
average of the closing prices, computed to three decimal places, of the
Common Stock as reported on the NYSE for the last five trading days of the
calendar month prior to the Investment Date. The price of shares of
Common Stock purchased or sold in the open market will be the weighted
average price per share of the aggregate number of shares of each class of
Common Stock purchased or sold, respectively, in the open market for the
relevant period. There will be no discount from these purchase prices
offered for shares of Common Stock purchased under the Plan. The
Corporation will pay the costs of administration of the Plan including any
brokerage commission and related fees incurred for the purchase of shares
of Common Stock. Participants will be responsible for any applicable
taxes relating to the purchase of shares of Common Stock. The Plan
participants will bear the cost of brokerage commissions, any related
service charges and applicable taxes relating to the sale of shares of
Common Stock sold in the open market.
To the extent required by applicable law in certain jurisdictions,
including Arizona, Florida, Maine, Nebraska, North Carolina, North Dakota,
Oklahoma and Vermont, shares of Common Stock offered under the Plan to
persons not presently record holders of Common Stock will be offered only
through a registered broker/dealer in such jurisdictions.
This Prospectus contains a summary of the material provisions of the
Plan and, therefore, this Prospectus should be retained by participants in
the Plan ("Participants") for future reference.
-------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is _______ , 1995.
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws
of any such state.
TABLE OF CONTENTS
Page Page
AVAILABLE INFORMATION . . . . . . 3 DESCRIPTION OF THE PLAN (Continued)
INCORPORATION OF CERTAIN Safekeeping Service . . . . . . . . 12
DOCUMENTS BY REFERENCE . . . . 3 Sale of Shares of Common Stock . . 12
THE CORPORATION . . . . . . . . . 4 Withdrawal of Shares of
APPLICATION OF PROCEEDS . . . . . 5 Common Stock . . . . . . . . . . 13
DESCRIPTION OF THE PLAN . . . . . 5 Transfer of Eligible
Purpose . . . . . . . . . . . 5 Securities . . . . . . . . . . . 13
Advantages . . . . . . . . . . 5 Purchasing Gift Shares for
Disadvantages . . . . . . . . 6 Others . . . . . . . . . . . . . 14
Summary . . . . . . . . . . . 7 Reinvestment of Dividends on
Administration . . . . . . . . 7 Remaining Shares . . . . . . . . 14
Eligibility . . . . . . . . . 7 Reports to Participants . . . . . . 15
Enrollment Procedures . . . . 8 Certificates for Shares . . . . . . 15
Eligible Securities . . . . . 8 Termination of Participation . . . 15
Initial and Optional Costs . . . . . . . . . . . . . . . 16
Investments. . . . . . . . . 8 Federal Income Tax
Reinvestment of Consequences . . . . . . . . . . 16
Dividends. . . . . . . . . .10 Employee Participation . . . . . . 16
Changing Plan Options. . . . .10 Miscellaneous . . . . . . . . . . . 17
Direct Deposit of Dividends PLAN OF DISTRIBUTION . . . . . . . . 18
Not Reinvested . . . . . . .10 DESCRIPTION OF CAPITAL STOCK . . . . 19
Investment Dates . . . . . . .11 EXPERTS . . . . . . . . . . . . . . . 20
Purchase of Shares of LEGAL OPINION . . . . . . . . . . . . 21
Common Stock . . . . . . . .11 DEFINITION OF SELECTED TERMS. . . . . A-1
-3-
AVAILABLE INFORMATION
The Corporation is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements and other
information with the Securities and Exchange Commission (the
"Commission"). Such reports, proxy statements and other information can
be inspected and copied at the public reference facilities maintained by
the Commission at 450 Fifth Street, N.W., Judiciary Plaza, Washington,
D.C. 20549, and at the Commission's regional offices at Northwestern
Atrium Center, 500 West Madison Street, 14th Floor, Chicago, Illinois
60661 and at 7 World Trade Center, 13th Floor, New York, New York 10048.
Copies of such material can be obtained at prescribed rates from the
Public Reference Section of the Commission at its principal office at
450 Fifth Street, N.W., Judiciary Plaza, Washington, D.C. 20549. Such
reports, proxy statements and other information concerning the Corporation
may also be inspected at the offices of the NYSE, 20 Broad Street, New
York, New York 10005.
This Prospectus constitutes a part of a registration statement
(together with all amendments and exhibits thereto, the "Registration
Statement") filed by the Corporation with the Commission under the
Securities Act of 1933, as amended ("Securities Act"). As permitted by
the rules and regulations of the Commission, this Prospectus omits certain
information contained in the Registration Statement, and reference is made
to the Registration Statement for further information with respect to the
Corporation and the shares of Common Stock registered under the
Registration Statement. Any statements contained herein concerning the
provisions of any document filed as an exhibit to the Registration
Statement or otherwise filed with the Commission are not necessarily
complete, and in each instance reference is made to the copy of such
document so filed. Each such statement is qualified in its entirety by
such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by the Corporation with
the Commission pursuant to the Exchange Act (File No. 1-9513), are
incorporated by reference into this Prospectus and shall be deemed to be a
part hereof:
(1) the Corporation's Annual Report on Form 10-K for the year
ended December 31, 1994;
(2) the Corporation's Quarterly Reports on Form 10-Q for the
quarterly periods ended March 31, 1995 and June 30, 1995;
(3) the Corporation's Current Reports on Form 8-K dated January
10 and February 2, 1995.
All documents subsequently filed by the Corporation with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act prior to the termination of the offering of Common Stock made by this
Prospectus shall be deemed to be incorporated herein by reference and to
be a part hereof from the date of filing of such documents. Any statement
contained herein or in a document incorporated or deemed to be
incorporated by reference into this Prospectus shall be deemed to be
modified or superseded for purposes of this Prospectus to the extent that
a statement contained herein or in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies
or supersedes such statement. Any such statement so modified or
superseded shall not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
The Corporation hereby undertakes to provide copies of any or all of
the documents referred to above that have been or may be incorporated by
reference into this Prospectus (not including exhibits to the documents
that are incorporated by reference unless such exhibits are specifically
incorporated by reference into such documents) without charge to each
person, including any beneficial owner, to whom a copy of this Prospectus
is delivered, upon written or oral request of the recipient. Requests for
copies of such documents or for additional information regarding the Plan
and its Administrator should be directed in writing or by telephone to
CMS Energy Corporation, Investor Services Department, 212 West Michigan
Avenue, Jackson, Michigan 49201, telephone number: 517-788-1871; fax
number: 517-788-1859.
THE CORPORATION
The Corporation, incorporated in 1987, is the parent holding company
of Consumers Power Company ("Consumers") and CMS Enterprises Company
("Enterprises"). Consumers, a combination electric and gas utility
company serving most of Michigan's Lower Peninsula, is the Corporation's
largest subsidiary. Consumers' customer base includes a mix of
residential, commercial and diversified industrial customers, the largest
of which is the automotive industry. Enterprises is engaged in several
non-utility energy related businesses including: (i) oil and gas
exploration and production, (ii) development and operation of independent
power production facilities, (iii) gas marketing services to utility,
commercial and industrial customers and (iv) transmission and storage of
natural gas.
The Corporation conducts its principal operations through the
following five business segments: (i) electric utility operations;
(ii) natural gas utility operations; (iii) gas transmissions and
marketing: (iv) oil and gas exploration and production operations; and
(v) independent power production. Consumers or Consumers' subsidiaries
are engaged in two segments; electric operations and gas operations.
Consumers' electric and gas businesses are principally regulated utility
operations.
The Corporation's 1994 consolidated operating revenue was $3,619
million. This consolidated operating revenue was derived from Consumers'
sales of electric energy (approximately 61% or $2,189 million), Consumers'
gas operations (approximately 32% or $1,151 million), gas transmission and
marketing (approximately 4% or $145 million), oil and gas exploration and
production activities (approximately 2% or $85 million) and independent
power production activities (approximately 1% or $45 million). Consumers'
consolidated operations in the electric and gas utility businesses account
for the major share of CMS Energy's total assets, revenue and income.
CMS Energy's share of 1994 unconsolidated non-utility independent power
production revenue was $385 million.
Consumers is a public utility serving almost six million of Michigan's
nine million residents in all of the 68 counties in Michigan's Lower
Peninsula. Industries in Consumers' service area include automotive,
metal, chemical, food and wood products and a diversified group of other
industries. Consumers' rates and certain other aspects of its business
are subject to the jurisdiction of the Michigan Public Service Commission
and the Federal Energy Regulatory Commission.
The foregoing information concerning the Corporation and its
subsidiaries does not purport to be comprehensive. For additional
information concerning the Corporation and its subsidiaries' business and
affairs, including their capital requirements and external financing
plans, pending legal and regulatory proceedings and descriptions of
certain laws and regulations to which those companies are subject,
prospective purchasers should refer to the documents incorporated by
reference herein. See "Incorporation of Certain Documents by Reference"
and "Available Information," above.
The address of the principal executive offices of the Corporation is
330 Town Center Drive, Suite 1100, Dearborn, Michigan, 48126. Its
telephone number is (313) 436-9200.
APPLICATION OF PROCEEDS
Since purchases of Common Stock under the Plan may be satisfied by
either (i) the purchase of authorized but unissued shares of Common Stock
issued by the Corporation ("newly issued shares"), or (ii) the purchase of
shares of Common Stock in the open market, the number of shares of Common
Stock, if any, that the Corporation ultimately will sell under the Plan is
not known. If newly issued shares of Common Stock are purchased under the
Plan, the proceeds from such sales will be used for general corporate
purposes, including, without limitation, the redemption, repayment or
retirement of outstanding indebtedness of the Corporation or the advance
or contribution of funds to one or more of the Corporation's subsidiaries
to be used for their general corporate purposes, including, without
limitation, the redemption, repayment or retirement of indebtedness or
preferred stock of one or more of such subsidiaries. The Corporation will
not receive any proceeds when shares of Common Stock are purchased under
the Plan in the open market.
DESCRIPTION OF THE PLAN
Purpose
The purpose of the Plan is to provide current and potential investors
with a convenient way to purchase shares of all classes of Common Stock
and to reinvest all or a portion of the dividends on Eligible Securities
in shares of Common Stock without payment of a brokerage commission.
Advantages
* Interested investors, not already of record, may become
Participants by making an initial minimum investment of at least
$500 to purchase any class of Common Stock through the Plan.
* Record or registered holders of any class of Common Stock not
already Participants may become Participants by electing to have
all or a portion of their dividends reinvested in the same class
of Common Stock, by depositing certificates representing Common
Stock into the Plan for safekeeping or by making an initial
minimum investment of at least $25 to purchase shares of any
class of Common Stock through the Plan.
* Record or registered holders of Preferred Stock not already
Participants may become Participants by electing to have all or a
portion of their dividends invested in CMS Energy Common Stock,
or by making an initial minimum investment of at least $25 to
purchase shares of any class of Common Stock through the Plan.
* In addition to having dividends reinvested in the appropriate
class of Common Stock, Participants may invest additional funds
in any class of Common Stock in amounts of at least $25 for any
single investment up to $120,000 per calendar year per class of
Common Stock. Optional investments may be made occasionally or
at regular intervals, as the Participant desires. Optional
investments will be applied to the currently held class of Common
Stock unless otherwise indicated. If the Participant holds more
than one class of Common Stock, and no designation is made, the
funds will be applied to CMS Energy Common Stock.
* Funds invested in the Plan are fully invested in the appropriate
class of Common Stock through the purchase of whole shares and
fractional shares. Dividends will be paid on total shares held
in the account, including fractional shares.
* The Plan offers a "safekeeping" service through which
Participants may deposit, free of any service charges,
certificates representing Common Stock into the Plan. Shares of
Common Stock deposited will be credited to the account of the
Participant. This service can be selected by Participants
without participating in any other feature of the Plan.
* Participants may direct the Corporation, at any time and at no
cost to the Participant, to transfer all or a portion of the
shares of Common Stock credited to their accounts (including
those shares of Common Stock deposited into the Plan for
safekeeping) to the account of another Participant (or to set up
an account for a new Participant in connection with the transfer)
or to send certificate(s) representing shares to the Participant
or another designated person or entity.
* Statements will be mailed to Participants showing current
transactions, total shares of Common Stock credited to their
accounts and other information related to their accounts. (Note:
Participants should retain all statements for tax purposes.)
* Participants may direct that all or a portion of their dividends
on Eligible Securities, including shares of Common Stock
purchased for a Participant under the Plan and shares of Common
Stock deposited into the Plan for safekeeping, be reinvested in
shares of the same class of Common Stock or, in the case of
Preferred Stock, CMS Energy Common Stock. Dividends that the
participant elects not to reinvest in shares of Common Stock will
be paid in the usual manner.
* Participants may sell shares of Common Stock credited to their
accounts (including those shares of Common Stock deposited into
the Plan for safekeeping) through the Plan.
Disadvantages
* Participants have no control over the price and, in the case of
shares of Common Stock purchased or sold in the open market by an
Independent Agent, the time at which Common Stock is purchased or
sold, respectively, for their accounts. Purchases in the open
market may be, but are not required to be, made on the relevant
Investment Date and will be completed as soon as practicable
thereafter. Funds not invested in Common Stock within 35 days
after receipt of optional and/or initial investments, or 30 days
after a dividend date for reinvested dividends , will be promptly
returned to Participants. Sales by Participants under the Plan
will be made by an Independent Agent as soon as practicable after
processing the sales request. Therefore, Participants bear the
market risk associated with fluctuations in the price of the
Common Stock. See "Investment Dates," "Purchases of Shares of
Common Stock" and "Sale of Shares of Common Stock."
* No interest will be paid on funds held by the Administrator (as
hereinafter defined) pending investment under the Plan.
* Funds for optional and initial investments must be received by
the Administrator no later than the business day prior to an
Investment Date to be invested beginning on that Investment Date.
Otherwise, the funds may be held by the Administrator and
invested beginning on the next Investment Date. Funds for
optional and initial investments need not be returned to
Participants unless a written request is received by the
Administrator no later than the business day prior to the
applicable Investment Date, or 35 days have passed since receipt.
(See "Initial and Optional Investments.")
Summary
The following is a summary of the material terms and provisions of the
Plan and does not purport to be a complete description of all terms and
provisions of the Plan. The following summary is qualified in its
entirety by reference to all of the terms and provisions of the Plan,
which is an exhibit to the Registration Statement.
Administration
Administration of the Plan is conducted by the individual (who may be
an employee of the Corporation), bank, trust company or other entity
(including the Corporation) appointed from time to time by the Corporation
to act as administrator of Plan (the "Administrator"). The Corporation is
presently the Administrator. The Administrator is responsible for
administering the Plan, receiving all investments made by Participants,
maintaining records of each Participant's account activities, issuing
statements of account and performing other duties required by the Plan.
The Administrator or its nominee, as custodian, will hold one or more
certificates registered in its name representing the aggregate number of
whole shares of each class of Common Stock purchased under, or deposited
for safekeeping into, the Plan and credited to Participants' accounts.
The Administrator will promptly transmit funds to be used to purchase
shares of Common Stock to a segregated bank account or to an agent
selected by the Corporation (an "Independent Agent") that is an "agent
independent of the issuer," as that term is defined in the rules and
regulations under the Exchange Act. Additionally, the Administrator will
promptly forward sales instructions to the Independent Agent. The
Independent Agent is responsible for purchasing and selling shares of
Common Stock in the open market for Participants' accounts in accordance
with the provisions of the Plan. Under certain circumstances, the
Administrator may be an Independent Agent. The Corporation believes that
its serving as Administrator rather than having a registered broker-dealer
or a federally insured banking institution serve as Administrator poses no
material risks to Participants.
Participants may contact the Administrator by writing:
CMS Energy Corporation
Investor Services Department
212 West Michigan Avenue
Jackson, Michigan 49201
or by telephoning (517) 788-1868, between 8 a.m. and 5 p.m., Monday
through Friday, Eastern Time. Communications may be faxed to (517) 788-
1859.
Eligibility
ANY PERSON OR ENTITY, whether or not a record holder of Common Stock
or Preferred Stock, IS ELIGIBLE TO PARTICIPATE IN THE PLAN, provided that
(i) the person or entity fulfills the prerequisites for participation
described below under "Enrollment Procedures" and (ii) in the case of
citizens or residents of a country other than the United States, its
territories and possessions, participation would not violate local laws
applicable to the Corporation, the Plan and the Participant.
Enrollment Procedures
Holders of Common Stock currently participating in the Corporation's
Dividend Reinvestment and Common Stock Purchase Plan, which is being
replaced by the Stock Purchase Plan (by means of amendment and
restatement), will automatically be Participants in the Plan without
sending in a new enrollment form ("Authorization Form"). However,
Participants who wish to change their participation in any way (e.g., from
full to partial reinvestment) must submit new Authorization Forms.
After being furnished with a copy of this Prospectus, eligible
applicants may join the Plan at any time by completing and signing an
Authorization Form in the manner set forth below. REQUESTS FOR COPIES OF
AUTHORIZATION FORMS, AS WELL AS COPIES OF OTHER PLAN FORMS AND THIS
PROSPECTUS, SHOULD BE MADE IN WRITING OR BY TELEPHONE TO THE
ADMINISTRATOR'S ADDRESS AND TELEPHONE NUMBER LISTED IN "ADMINISTRATION"
ABOVE. RECORD OR REGISTERED HOLDERS OF ELIGIBLE SECURITIES SHOULD BE SURE
TO SIGN THEIR NAME(S) ON THE AUTHORIZATION FORM EXACTLY AS THEY APPEAR ON
THEIR CERTIFICATES.
In order to become a Participant in the Plan, an eligible applicant
must complete and sign an Authorization Form and return it to the
Administrator. The applicant must also do at least one of the following:
(i) elect to have dividends on Common Stock of which the applicant is the
record or registered holder invested in the same class of Common Stock
(see "Reinvestment of Dividends"), (ii) elect to have dividends on
Preferred Stock of which the applicant is the record or registered holder
invested in CMS Energy Common Stock (see "Reinvestment of Dividends"),
(iii) deposit certificates representing shares of Common Stock into the
Plan for safekeeping (see "Safekeeping Service") or (iv) make an initial
investment of at least $500 (see "Initial and Optional Investments").
Beneficial owners of Eligible Securities registered in "street name"
(e.g., in the name of a bank, broker, or trustee) may become eligible to
participate in the Plan with respect to the securities by either
(i) having those shares of Common Stock or Preferred Stock which they wish
to be subject to the Plan transferred into their own name or (ii) making
arrangements with the record or registered holder (e.g., their bank,
broker or trustee, who will become the Participant) of the securities to
participate in the Plan on the beneficial owner's behalf.
A person will become a Participant after a properly completed
Authorization Form has been received and accepted by the Administrator.
Eligible Securities
"Eligible Securities" are Common Stock and Preferred Stock.
In addition, the Corporation may from time to time designate, in its
sole discretion, other equity securities of the Corporation and its
subsidiaries as Eligible Securities by notifying the Administrator in
writing of the designation.
Initial and Optional Investments
Interested investors, whether or not record or registered holders of
Eligible Securities, may become Participants by making an investment
through the Plan as hereinafter described. ELIGIBLE APPLICANTS WHO ARE
NOT RECORD OR REGISTERED HOLDERS OF ELIGIBLE SECURITIES MUST SUBMIT TO THE
ADMINISTRATOR A MINIMUM INITIAL INVESTMENT OF AT LEAST $500 FOR THE CLASS
OF COMMON STOCK THEY WISH TO INVEST IN ALONG WITH THEIR COMPLETED
AUTHORIZATION FORMS. Eligible applicants who are record or registered
holders of Eligible Securities must submit to the Administrator a minimum
initial investment of at least $25 for each class of Common Stock which
they wish to invest in along with their completed Authorization Forms.
Investments may be made by personal check or money order payable to
CMS Stock Plan. Please do not send cash. Interested investors wishing to
make wire transfers should contact the Administrator.
Participants may make optional investments either by signing up for
automatic investment as discussed below or by delivering to the
Administrator (a) a completed optional investment form (attached to each
Participant's statement of account) and (b) a personal check or money
order payable to CMS Stock Plan. Please do not send cash. Participants
wishing to make wire transfers should contact the Administrator. Optional
investments must be at least $25 for each class of Common Stock for any
single investment. There is no obligation to make any optional
investments and the amount and timing of investments may vary from time to
time at the discretion of the Participant.
PARTICIPANTS WHO WISH TO MAKE OPTIONAL INVESTMENTS ON A REGULAR BASIS
SHOULD CONTACT THE ADMINISTRATOR TO REQUEST AN AUTOMATIC INVESTMENT
AUTHORIZATION FORM ("AUTOMATIC INVESTMENT AUTHORIZATION FORM") THIS
PROGRAM PROVIDES THE CONVENIENCE OF AUTOMATIC MONTHLY INVESTMENTS DEDUCTED
DIRECTLY FROM YOUR BANK ACCOUNT, WITHOUT THE NEED TO MAIL CHECKS.
The total initial and optional investments may not exceed $120,000 per
class of Common Stock per calendar year (the "Maximum Amount").
An Investment Date will occur once every month. See "Investment
Dates." Optional and initial investments will be made in Common Stock
beginning on the first Investment Date following their receipt by the
Administrator; provided, that the funds are received by the Administrator
no later than the business day prior to an Investment Date. Otherwise,
the funds may be held by the Administrator and invested beginning on the
next Investment Date. See "Investment Dates" and "Purchases of Shares of
Common Stock." NO INTEREST WILL BE PAID ON FUNDS HELD BY THE
ADMINISTRATOR PENDING INVESTMENT. Accordingly, Participants and
interested investors may wish to transmit funds so as to reach the
Administrator shortly before an Investment Date.
Upon a Participant's written request, received by the Administrator no
later than the business day prior to the applicable Investment Date, funds
not already invested in Common Stock will be returned to the Participant.
However, no refund of a check or money order will be made until the funds
from the instruments have been actually collected by the Administrator.
Accordingly, the refunds may be significantly delayed. If the written
request to stop investment is not received by the Administrator by the
business day prior to an Investment Date, any funds then held by the
Administrator will be invested in Common Stock on the Investment Date.
Funds for optional and initial investments, pending purchase of Common
Stock pursuant to the Plan, will be credited to a Participant's account
and held in a bank account which will be separated from any other funds or
monies of the Corporation. Funds not invested in Common Stock within 35
days of receipt will be promptly returned to the Participant. All funds
are subject to collection by the Administrator of U.S. dollars. The
method of delivery of any funds is at the election and risk of the
Participant or interested investor and will be deemed received when
actually received by the Administrator.
Dividends paid on shares of Common Stock credited to a Participant's
account that were purchased through the Plan will be reinvested in shares
of Common Stock in accordance with the Participant's reinvestment election
designated on a completed Authorization Form.
Reinvestment of Dividends
Participants may elect to invest in Common Stock by reinvesting all or
a portion of dividends paid on (i) Eligible Securities registered in their
names, on (ii) Common Stock purchased through the Plan and credited to
their accounts, and on (iii) Common Stock deposited into the Plan for
safekeeping, by designating the election on their Authorization Form. If
a Participant does not make an election, dividends on shares of Common
Stock credited to a Participant's account that were purchased through the
Plan or deposited into the Plan for safekeeping will be reinvested.
Participants electing partial reinvestment of dividends must designate the
specific security for which the partial reinvestment is desired and the
percentage of shares or whole number of shares for which cash payment is
desired. Once a Participant elects reinvestment, dividends on the
designated Common Stock will be reinvested in shares of the same class of
Common Stock, and dividends paid on the designated Preferred Stock will be
reinvested in shares of CMS Energy Common Stock. The amount reinvested
will be reduced by any amount which is required to be withheld under any
applicable tax or other statutes. If the Participant has specified
partial reinvestment, the portion of the dividends not designated for
reinvestment will be sent to the Participant by check in the usual manner
or by electronic direct deposit, if the Participant has elected the direct
deposit option. See "Direct Deposit of Dividends Not Reinvested."
Dividends will be invested in Common Stock beginning either on the
date of payment, if the payment date is an Investment Date, or on the
first Investment Date following the payment. See "Investment Dates" and
"Purchases of Common Stock." Dividends not invested in Common Stock
within 30 days of receipt will be promptly forwarded to the Participant.
Dividend reinvestment amounts, pending investment pursuant to the Plan,
will be credited to a Participant's account and held in a bank account
which will be segregated from any other funds or monies of the
Corporation. See "Investment Dates." No interest will be paid on funds
held by the Administrator pending investment.
Changing Plan Options
Participants may change their Plan options, including (i) changing the
reinvestment level (i.e., full, partial or none) of dividends on Eligible
Securities and (ii) changing the designation of Eligible Securities on
which dividends are subject to reinvestment, by delivering written
instructions or a new Authorization Form to that effect to the
Administrator. To be effective for a particular dividend, instructions
must be received by the Administrator on or before the record date
relating to the dividend. IF INSTRUCTIONS ARE NOT RECEIVED BY THE
ADMINISTRATOR ON OR BEFORE THE RECORD DATE, THE INSTRUCTIONS WILL NOT
BECOME EFFECTIVE UNTIL AFTER THE DIVIDEND IS PAID. The shares of Common
Stock purchased with the funds will be credited to the Participant's
account.
Direct Deposit of Dividends Not Reinvested
Participants who elect not to reinvest all dividends may receive the
non-reinvested dividends by electronic deposit to their predesignated
bank, savings, or credit union account. To receive a direct deposit of
funds, Participants must complete and sign a "Direct Deposit Authorization
Form" and return it to the Administrator. Direct deposit will become
effective as soon as practicable after receipt of a completed Direct
Deposit Authorization Form. Changes in designated direct deposit accounts
may be made by delivering written instructions or a completed Direct
Deposit Authorization Form to the Administrator.
Dividends on Eligible Securities not designated for reinvestment and
not directly deposited will be paid by check on the applicable "dividend
payment date." The dividend payment date for Preferred Stock is the first
day of January, April, July and October. The dividend payment date for
CMS Common Stock is generally the 22nd day of February, May, August and
November.
Investment Dates
An "Investment Date" under the Plan will generally be the first
trading day of the month. If shares of stock are purchased on the open
market, and if, in the discretion of the Independent Agent, it is not
practicable to make all the investments on the first trading day, the
shares will be purchased as soon as practicable thereafter.
Purchases of Shares of Common Stock
Shares of Common Stock purchased for Participants under the Plan will
be either newly issued shares or, at the Corporation's option, shares of
Common Stock purchased in the open market by an Independent Agent. The
primary consideration in determining the source of shares of Common Stock
to be used for purchases under the Plan is expected to be the
Corporation's need to increase equity capital. If the Corporation does
not need to raise funds externally or if financing needs are satisfied
using non-equity sources of funds to maintain the Corporation's targeted
capital structure, shares of Common Stock purchased for Participants under
the Plan will be purchased in the open market, subject to the limitation
discussed below for changing the source of shares of Common Stock. As of
the date of this Prospectus, shares of Common Stock purchased for
Participants under the Plan are newly issued shares. The Plan limits the
Corporation from changing its determination regarding the source of
purchases of the shares (i.e., from the Corporation or in the open market)
more than once in any 3-month period. At any time that shares of Common
Stock are purchased for Participants under the Plan in the open market,
the Corporation will not exercise its right to change the source of
purchases of shares of Common Stock absent a determination by the Board of
Directors of the Corporation or Chief Financial Officer that the
Corporation has a need to increase equity capital or there is another
valid reason for the change.
Purchases of newly issued shares of Common Stock from the Corporation
will be made on the relevant Investment Date at the average of the closing
prices of each class of Common Stock reported on the NYSE as published in
The Wall Street Journal for the last five trading days preceding the
Investment Date. In the event no trading is reported for the trading day,
the purchase price may be determined by the Corporation on the basis of
the market quotations as it deems appropriate. No brokerage commissions
will be charged for shares purchased.
Purchases in the open market will occur on the relevant Investment
Date, or as soon thereafter as practicable as discussed above in
"Investment Dates". Funds not invested in Common Stock within 35 days
after receipt of optional and/or initial investments, or 30 days after a
dividend date for reinvested dividends, will be promptly returned to
Participants. The price of any shares of Common Stock purchased in the
open market for Participants will be the weighted average price per share
of the aggregate number of shares of each class purchased for the relevant
Investment Date.
The number of shares (including any fractional shares rounded to three
decimal places) of Common Stock credited to the account of a Participant
for a particular Investment Date will be determined by dividing the total
amount of dividends and funds provided for investment for a Participant on
the Investment Date by the relevant purchase price per share.
With regard to open market purchases and sales of shares of Common
Stock by an Independent Agent, neither the Corporation, the Administrator
(if it is not also the Independent Agent) nor any Participant will have
any authority or power to direct the time or price at which shares may be
purchased or sold, the markets on which the shares are to be purchased or
sold (including on any securities exchange, in the over-the-counter market
or in negotiated transactions), or the selection of the broker or dealer
(other than any Independent Agent) through or from whom purchases and
sales may be made. The Independent Agent may commingle each Participant's
funds with those of other Participants for the purpose of executing
purchase and sale transactions. Dividend and voting rights will commence
upon settlement, whether shares are purchased from the Corporation or any
other source.
Safekeeping Service
At the time of enrollment, or at any later time, Participants may take
advantage of the Plan's cost-free safekeeping services. Common Stock held
in certificate form by a Participant may be deposited into the Plan, to be
held by the Administrator or its nominee, by delivering a completed
Authorization Form and stock certificates to the Administrator. THE
CERTIFICATES SHOULD NOT BE ENDORSED. The shares of Common Stock deposited
will be transferred into the name of the Administrator or its nominee, as
custodian, and credited to the Participant's account. Thereafter, these
shares of Common Stock will be treated in the same manner as shares of
Common Stock purchased under the Plan and credited to the Participant's
account. References herein to shares of Common Stock credited to a
Participant's account will include shares of Common Stock deposited into
the Plan for safekeeping unless otherwise indicated. Dividends on shares
of Common Stock credited to Participants' accounts that were deposited
into the Plan for safekeeping may be reinvested in shares of Common Stock
in accordance with the Participants' reinvestment election designated on
their Authorization Form. However, the safekeeping service can be
selected by Participants without participating in any other feature of the
Plan.
Sale of Shares of Common Stock
Participants may request, at any time, that all or a portion of the
shares of Common Stock credited to their accounts be sold by delivering to
the Administrator a completed Request Form. The Administrator will
forward the sale instructions to an Independent Agent as soon as
practicable after (i) Request Forms for a total of at least 100 shares
have been received and (ii) at least five business days have elapsed since
the most recent forwarding of sale instructions to the Independent Agent.
(The intent is to forward sale instructions to the Independent Agent every
five business days, if sale requests totaling at least 100 shares have
been received.) An Independent Agent will sell the shares as soon as
practicable after receiving the sale instructions. See "Purchase of
Shares of Common Stock" for additional discussion concerning open market
sales by the Independent Agent. The price of any shares of Common Stock
sold in the open market for Participants will be the weighted average
price per share of the aggregate number of shares of each class sold for
the relevant Investment Date. The proceeds of the sale (less brokerage
fees and commissions and any transfer taxes) will then be paid to the
Participants by check.
If instructions for the sale of shares of Common Stock on which
dividends are not being reinvested are received by the Administrator on or
after the record date relating to a dividend payment date but before the
dividend payment date, the sale will be processed as described above and a
separate check for the dividends will be mailed to the Participant
following the dividend payment date or will be directly deposited into the
Participant's designated direct deposit account, as applicable. If
instructions for the sale of shares of Common Stock on which dividends are
being reinvested are received by the Administrator on or after the record
date relating to a dividend payment date but before the Investment Date,
and (i) if the Participant's sale instructions cover less than all of the
shares of Common Stock credited to the account, the sale will be processed
as described above in the immediately preceding paragraph, the dividends
will be invested and the newly purchased shares will be credited to the
Participant's account or (ii) if the Participant's sale instructions cover
all of the shares of Common Stock credited to the account, the sale
instructions will be processed and a check for the dividend will be
provided. See "Reinvestment of Dividends on Remaining Shares" for the
reinvestment level of dividends on shares of Common Stock credited to a
Participant's account after a sale.
Withdrawal of Shares of Common Stock
Participants may withdraw some or all of the Common Stock credited to
their accounts from the Plan at any time by delivering to the
Administrator (i) written instructions, if the Participant will be the
record holder of the Common Stock after withdrawal, or (ii) a completed
Request Form and a stock assignment (stock power form), if the Participant
will not be the record holder of the Common Stock after withdrawal. Upon
the Administrator's receipt of the proper documentation, certificates
representing the designated Common Stock will be sent to the Participant
or any other person that the Participant has designated.
If a request for withdrawal with regard to shares of Common Stock
credited to a Participant's account on which dividends are not being
reinvested is received on or after the record date relating to a dividend
payment date but before the dividend payment date, the withdrawal will be
processed as described above and a separate check for the dividends will
be mailed to the Participant following the dividend payment date or will
be directly deposited into the Participant's designated direct deposit
account, as applicable. If a completed request for withdrawal with regard
to shares of Common Stock credited to a Participant's account on which
dividends are being reinvested is received by the Administrator on or
after the record date relating to the dividend payment date but before the
Investment Date, and (i) if the Participant's withdrawal instructions
cover less than all of the shares of Common Stock credited to the account,
the withdrawal will be processed as described above in the immediately
preceding paragraph, dividends will be invested in Common Stock through
the Plan, and the newly purchased shares will be credited to the
Participant's account or (ii) if the Participant's withdrawal instructions
cover all of the shares of Common Stock credited to their accounts, the
withdrawal instructions will be processed and checks for the dividends and
for the sale of any fractional shares will be provided. Dividends on
shares of Common Stock withdrawn will continue to be reinvested in
accordance with the Participant's prior election unless the Participant
elects a different level on an Authorization Form.
Certificates representing whole shares of Common Stock withdrawn from
the Plan will be sent to the Participant or designated recipient by First
Class Mail as soon as practicable following the Administrator's receipt of
the required documentation, subject to the provisions of the preceding
paragraph. Withdrawal of shares of Common Stock does not affect
reinvestment of dividends on the shares withdrawn unless (i) the
Participant is no longer the record holder of the shares, (ii) the
reinvestment is specifically discontinued by the Participant (see
"Changing Plan Options"), or (iii) the Participant terminates
participation in the Plan (see "Termination of Participation by a
Participant").
Transfer of Eligible Securities
From a Broker-Owners of Eligible Securities held beneficially in
"street name" may participate in the Plan with respect to the securities
by either (i) having the shares of Eligible Securities which they wish to
be subject to the Plan transferred into their own names and depositing
shares of Common Stock into the Plan for safekeeping and/or electing to
reinvest dividends in Common Stock or (ii) making arrangements with the
record or registered holder (e.g., their bank, broker or trustee, who will
become the Participant) of the securities to participate in the Plan on
the beneficial owner's behalf. If the person is already a Participant,
the Eligible Securities must be transferred to the Participant in the same
name in which the Participant's account is registered. If the person does
not have an account, participation in the Plan will commence when the
Eligible Securities are registered in the person's name and a properly
completed Authorization Form is received by the Administrator.
Gift or Transfer of Shares of Common Stock Within the Shareholder
Stock Purchase Plan-If Participants wish to transfer, whether by gift,
private sale or otherwise, ownership of all or a part of the shares of
Common Stock credited to their accounts, to the account of another
Participant or wish to establish by the transfer an account for a person
or entity not already a Participant, the Participant may do so by
delivering to the Administrator a completed Request Form and a stock
assignment (stock power form). The transfer will be effected as soon as
practicable following the Administrator's receipt of the required
documentation, subject to the provisions below. Requests for interaccount
transfers are subject to the same requirements as for the transfer of
securities generally, including the requirement of a guarantee of
signature on the stock assignment. Stock power forms are available at
local banks, brokerage firms and from the Administrator. See
"Reinvestment of Dividends on Remaining Shares" for the reinvestment level
of dividends on shares of Common Stock credited to a Participant's account
after a transfer.
Shares of Common Stock transferred will be credited to the
transferee's account. Unless a transferee who is already a Participant
otherwise directs the Administrator in writing by completion of an
Authorization Form, the reinvestment of dividends on the transferred
shares will be made in proportion to the reinvestment level (i.e., full,
partial or none) of the other shares of Common Stock credited to the
transferee's account. If the transferee is not already a Participant, an
account will be opened in the transferee's name and the transferee may
make elections with regard to reinvestment of dividends on the transferred
shares and other services provided by the Plan on the Authorization Form
provided. If no election is made, dividends will be fully reinvested.
Transferees will be sent a statement of account showing the transfer of
the shares into their accounts. The transferor may request that a gift
certificate be provided. The transferor may send the gift certificate
directly or request that it be sent by the Administrator to the
transferee.
If a request for transfer with regard to shares of Common Stock
credited to a Participant's account on which dividends are not being
reinvested is received on or after the record date relating to a dividend
payment date but before the dividend payment date, the transfer will be
processed as described above, and a separate check for the dividend will
be mailed to the transferor following the dividend payment date or will be
directly deposited into the transferor's designated direct deposit
account. If a completed request for transfer with regard to shares of
Common Stock credited to a Participant's account on which dividends are
being reinvested is received by the Administrator on or after the record
date relating to the dividend payment date but before the Investment Date,
the dividends will be invested in Common Stock through the Plan, and
(i) if the Participant's transfer instructions cover less than all of the
shares of Common Stock credited to the Participant's account, the transfer
will be processed as described above and the newly purchased shares of
Common Stock will be credited to the transferor's account or (ii) if the
transfer instructions cover all of the shares of Common Stock credited to
the Participant's account, the transfer instructions will be processed
following the Investment Date.
Purchasing Gift Shares for Others
Participants can purchase Common Stock for others. If the recipient
is not a registered owner of Eligible Securities, an initial investment of
at least $500 is required to establish an account in the recipient's name.
A completed Authorization Form in the name of the recipient is also
required. If the recipient is already a Participant, an investment of at
least $25 may be gifted. The gifted shares and statement of account will
be handled as discussed above under "Gift or Transfer of Shares of Common
Stock Within the Shareholder Stock Purchase Plan." Gift certificates are
available as discussed above.
Reinvestment of Dividends on Remaining Shares
If a Participant is reinvesting dividends on only a portion of the
shares of Common Stock credited to the account through the Plan and the
Participant elects to sell, withdraw or transfer a portion of the shares,
dividends on the remainder of the shares credited to the account, up to
the number of shares designated for payment prior to the sale, withdrawal
or transfer, will continue to be paid, except where the Participant gives
specific instructions to the contrary in connection with the sale,
withdrawal or transfer. For example, if a Participant who had elected to
have dividends paid on 50 shares of a total of 100 shares of Common Stock
credited to the account elected to sell, withdraw or transfer 25 shares,
dividends on 50 shares of the remaining 75 shares credited to the account
would be paid and 25 would be reinvested through the Plan. If instead the
Participant elected to sell, withdraw or transfer 75 shares, dividends on
the remaining 25 shares credited to the account would be paid.
Reports to Participants
Participants will receive statements of account showing current
transactions for their accounts, the number of shares of each class of
Common Stock credited to their accounts, the amount of cash held in the
account pending investment and other information for the account.
Statements of account will be provided in months where the Participant has
made an optional investment; deposited, transferred, sold or withdrawn
shares of Common Stock; or had dividends reinvested in Common Stock. The
Administrator also will send each Participant a confirmation promptly
after each sale of Common Stock under the Plan. Participants should
retain these statements of account and confirmations in order to establish
the cost basis, for tax purposes, for shares of Common Stock acquired
under the Plan.
Participants will receive copies of all communications sent to holders
of Common Stock. This may include quarterly and annual reports to
shareholders, proxy material, consent solicitation material and Internal
Revenue Service information, if appropriate, for reporting dividend
income. All notices, statements of account and other communications from
the Administrator to Participants will be addressed to the latest address
of record; therefore, it is important that Participants promptly notify
the Administrator of any change of address.
Certificates for Shares
Participants may obtain, free of charge at any time, a certificate for
all or a part of the whole shares of Common Stock credited to their
accounts upon written request to the Administrator. The certificate(s)
will be mailed by First Class Mail, within ten business days of the
Administrator's receipt of the written request, to the Participant's
address of record.
Except for transfers described in "Transfer of Shares of Common
Stock," shares of Common Stock credited to a Participant's account may not
be pledged or assigned. A Participant who wishes to pledge or assign
shares of Common Stock must request that they be withdrawn from the Plan.
See "Withdrawal of Shares of Common Stock."
Certificates for fractional shares of Common Stock will not be issued
under any circumstances.
Termination of Participation
Participants may at any time terminate their participation in the Plan
by delivering completed Request Forms to the Administrator to that effect.
Upon the Administrator's receipt of the written notification, Participants
will receive (i) a certificate for all of the whole shares of Common Stock
credited to their accounts, (ii) any dividends and funds credited to their
accounts pending investment for which the Administrator has collected the
value in U.S. dollars, and (iii) a check for the cash value of any
fractional shares of Common Stock credited to their accounts. The
fractional shares will be valued at the closing sales price of the Common
Stock reported on the NYSE as published in The Wall Street Journal for the
trading day preceding the date of termination.
Costs
The Corporation will pay all administrative costs and expenses
associated with the Plan. PARTICIPANTS WILL BEAR THE COST OF BROKERAGE
COMMISSIONS, RELATED SERVICE CHARGES AND ANY APPLICABLE TAXES INCURRED ON
ALL SALES OF SHARES OF COMMON STOCK MADE IN THE OPEN MARKET. THE
CORPORATION WILL BEAR THE COST OF BROKERAGE COMMISSIONS AND RELATED
SERVICE CHARGES ON ALL PURCHASES OF SHARES OF COMMON STOCK. THE
PARTICIPANT WILL BEAR THE COSTS OF ANY APPLICABLE TAXES. The costs will
be included as adjustments to sales and purchase prices. It is estimated
at this time that the brokerage commissions and related service charges
will not exceed ten cents per share. As of the date of this Prospectus,
shares of Common Stock purchased for Participants under the Plan are being
purchased directly from the Corporation by the Administrator.
Federal Income Tax Consequences
THE FOLLOWING DISCUSSION RELATES TO THE MATERIAL FEDERAL INCOME TAX
CONSEQUENCES OF PARTICIPATION IN THE PLAN. THE EFFECT OF SUCH TAX
CONSEQUENCES UPON ANY PARTICIPANT WILL DEPEND UPON SUCH PARTICIPANT'S
INDIVIDUAL CIRCUMSTANCES WHICH, TOGETHER WITH THE STATE AND LOCAL TAX
CONSEQUENCES OF PARTICIPATION, SHOULD BE DISCUSSED BY EACH PARTICIPANT
WITH A TAX ADVISOR.
Participants will be required to include in income for federal income
tax purposes amounts equal to the dividends reinvested in Common Stock
pursuant to the Plan and as if they had directly received such in cash. A
Participant who receives shares of Common Stock purchased in the open
market for which the Corporation has paid the Participant's share of
brokerage commissions and service fees may be treated as receiving
additional dividend income for tax purposes in the amount of the
Participant's share of brokerage commissions and service fees paid by the
Corporation.
A Participant's tax basis for shares of Common Stock purchased
pursuant to the Plan will be equal to the cost of such shares as discussed
above (which in the case of shares purchased in the open market may
include any brokerage commissions, service fees and applicable taxes).
Such shares of Common Stock will have a holding period beginning on the
day after the shares are allocated to the Participant's account.
All or a portion of the dividends distributed to holders of the
Corporation's stock may be a return of capital and, as such, would not be
taxable as ordinary income. Reports will be provided to shareholders
which will indicate if the Corporation has made a return of capital
distribution during the year. Shareholders receiving a return of capital
dividend 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.
Participants will not realize any taxable income when they receive
certificates for whole shares credited to their accounts under the Plan.
Gain or loss will be recognized by Participants when they sell such whole
shares previously received in certificated form from their accounts, when
fractional shares credited to their accounts are sold pursuant to the
terms of the Plan, and when shares of Common Stock credited to their
accounts are sold through the Plan.
Employee Participation
Employees (including part-time employees, but excluding temporary and
contract employees) of the Corporation and its subsidiaries who
participate in the Plan may make optional investments by executing an
"Employee Payroll Deduction Authorization Form" or by providing funds
directly to the Plan in the same manner as other Participants. The
Employee Payroll Deduction Authorization Form authorizes the Plan to make
payroll deductions of not less than $6.25 per pay period for employees
paid weekly and not less than $12.50 per pay period for employees paid
semimonthly and to use the deductions for the purchase of shares of the
designated class of Common Stock pursuant to the Plan. Employees may, at
any time, increase or decrease, within the above limits, the amount of the
deductions by notifying the Administrator at the address referred to under
"Administration." Payroll deduction authorizations previously executed by
Employee-shareholders will remain in effect unless the Administrator is
otherwise notified by the Participant.
In addition, optional investments may be made by employees in the same
manner as by other Participants by enclosing a check (made payable to
CMS Stock Plan) with an Employee Payroll Deduction Authorization Form when
enrolling, or at any other time by forwarding a check with an optional
investment stub which will be furnished to Participants by the Plan.
No interest will be paid by the Company on any optional investments or
payroll deduction amounts held prior to investment.
An employee may cancel the payroll deduction at any time and remain in
the Plan by sending a written request to the Administrator.
In order to withdraw from the Plan, an employee Participant must
notify the Plan in writing that the employee wishes to withdraw. The
employee's payroll deduction will be cancelled effective with the pay
period following receipt of the written request in the Investor Services
Department. The employee Participant's account will be terminated as soon
as practicable.
If an employee leaves the Corporation or its subsidiaries, the
employee will continue to be a Participant unless otherwise requested by
the employee in writing.
Miscellaneous
Stock Splits, Stock Dividends and Rights Offerings
Any shares or other securities representing stock splits or noncash
distributions on shares of Common Stock in the account of a Participant
will be credited to the Participant's account. Stock splits,
combinations, recapitalization and similar events affecting shares of
Common Stock in a Participant's account will be credited on a pro rata
basis.
In the event of a rights offering, a Participant will receive rights
based upon the total number of whole shares of Common Stock credited to
the Participant's account.
Voting of Proxies
Participants will have the exclusive right to exercise all voting
rights for shares of Common Stock credited to their accounts. The
Administrator will forward all shareholder materials relating to shares of
Common Stock credited to a Participant's account to the Participant.
Participants may vote the shares of Common Stock credited to their
accounts in person or by proxy. Participants' proxy cards will represent
all shares of Common Stock credited to their accounts and shares of Common
Stock registered in their names. Shares of Common Stock credited to a
Participant's account will not be voted unless the Participant or the
proxy votes them.
Limitation of Liability
The Plan provides that neither the Corporation, the Administrator
(including the Corporation if it is acting as such) in administering the
Plan nor any Independent Agent will be liable for any act done in good
faith or for the good faith omission to act in connection with the Plan,
including, without limitation, any claim of liability arising out of
failure to terminate a Participant's account upon the Participant's death
prior to receipt of notice in writing of the death, or with respect to the
prices at which shares of Common Stock are purchased or sold for the
Participant's account and the times when purchases and sales are made, or
with respect to any loss or fluctuation in the market value after the
purchase or sale of the shares. However, nothing contained in this
provision affects a Participant's right to bring a cause of action based
on alleged violations of federal securities laws.
Interpretation and Regulation of the Plan
The officers of the Corporation are authorized to take actions to
carry out the Plan as may be consistent with the Plan's terms and
conditions. The Corporation reserves the right to interpret and regulate
the Plan as the Corporation deems desirable or necessary in connection
with the Plan's operations.
Change or Termination of the Plan
The Corporation may suspend, modify or terminate the Plan at any time,
in whole, in part or in respect of Participants in one or more
jurisdictions, without the approval of Participants. Notice of such
suspension, modification or termination will be sent to all affected
Participants, who will in all events have the right to withdraw from
participation. Upon any whole or partial termination of the Plan by the
Corporation, affected Participants will receive (i) certificates for all
of the whole shares of Common Stock credited to their accounts, (ii) any
dividends and funds credited to their accounts pending investment for
which the Administrator has collected the value in U.S. dollars, and (iii)
a check for the cash value for any fractional shares of Common Stock
credited to their accounts. Fractional shares will be valued at the
closing sales price of the Common Stock reported on the NYSE as published
in The Wall Street Journal for the trading day preceding the date of
termination.
Termination of Participation by the Corporation
If a Participant does not have at least one whole share of any class
of Common Stock credited to the account, or does not own any Eligible
Securities for which dividends are designated for reinvestment pursuant to
the Plan, the Participant's participation in the Plan may be terminated by
the Corporation upon written notice to the Participant. Additionally, the
Corporation may terminate any Participant's participation in the Plan
after written notice mailed in advance to the Participant at the address
appearing on the Administrator's records. A Participant whose
participation has been terminated will receive (i) a certificate for all
of the whole shares of Common Stock credited to the account, (ii) any
dividends and funds credited to the account pending investment for which
the Administrator has collected the value in U.S. dollars, and (iii) a
check for the cash value of any fractional shares of Common Stock credited
to the account. Fractional shares will be valued at the closing price of
the Common Stock reported on the NYSE as published in The Wall Street
Journal for the trading day preceding the date of termination.
PLAN OF DISTRIBUTION
The Common Stock being offered hereby is offered pursuant to the Plan,
the terms of which provide for the purchase of shares of all classes of
Common Stock directly from the Corporation, or, at the Corporation's
option, by an Independent Agent on the open market. As of the date of
this Prospectus, shares of Common Stock purchased for Participants under
the Plan are being purchased from the Corporation. The Plan provides that
the Corporation may not change its determination regarding the source of
purchases of shares under the Plan more than once in any 3-month period.
The primary consideration in determining the source of shares of Common
Stock to be used for purchases under the Plan is expected to be the
Corporation's need to increase equity capital. If the Corporation does
not need to raise funds externally or if financing needs are satisfied
using non-equity sources of funds to maintain the Corporation's targeted
capital structure, shares of Common Stock purchased for Participants under
the Plan will be purchased in the open market, subject to the
aforementioned limitation on changing the source of shares of Common
Stock.
The Corporation will pay all administrative costs and expenses
associated with the Plan including any brokerage commission and related
service charges incurred in the purchase of shares of Common Stock.
Participants will bear the cost of brokerage commissions, related service
charges and any applicable taxes incurred on all sales of shares of Common
Stock made in the open market. The costs will be included as adjustments
to sales and purchase prices. There will be no brokerage commissions or
related service charges for shares of Common Stock purchased directly from
the Corporation.
DESCRIPTION OF CAPITAL STOCK
The Restated Articles of Incorporation of CMS Energy ("Articles of
Incorporation") authorize 320 million shares of capital stock, of which 10
million are shares of preferred stock, $.01 par value ("CMS Preferred
Stock"), 60 million are shares of Class G Common Stock, and 250 million
are shares of CMS Energy Common Stock. As of September 8, 1995, there
were no shares of CMS Energy preferred stock issued or outstanding, and
7,526,924 shares of Class G Common Stock and 91,077,775 shares of
CMS Energy Common Stock were issued and outstanding.
Voting: The holders of Class G Common Stock vote with the holders of
CMS Energy Common Stock as a single class, except on matters which would
be required by law or the Articles of Incorporation to be voted on by
class. Each of the class of Common Stock has one vote per share.
The Preemptive Rights: Neither class of Common Stock holders has
preemptive rights or any other rights to convert their shares into any
other securities of the Corporation.
Liquidation Rights: Upon liquidation or dissolution of the
Corporation, each outstanding share of CMS Energy Common Stock and Class G
Common Stock will entitle its holder to a share of the assets of the
Corporation remaining for distribution to holders of all classes of Common
Stock equal to the amount determined by dividing the total amount
remaining for distribution with the total number of shares of CMS Energy
Common Stock and Class G Common Stock then outstanding.
Exchanges: The Corporation may exchange the Class G Common Stock for
a proportionate number of shares of a subsidiary that holds all the assets
and liabilities attributed to the Consumers Gas Group, and no other assets
and liabilities. In the event of the disposition of all or substantially
all of the properties and assets attributed to the Consumers Gas Group to
another person, the Corporation is required to exchange shares of
CMS Energy Common Stock for each outstanding share of Class G Common Stock
at a 10% premium. The Corporation may also, in the sole discretion of the
Board of Directors, at any time exchange shares of CMS Energy Common Stock
for each outstanding share of Class G Common Stock at a 15% premium.
Dividends: The Class G Common Stock is intended to reflect the
separate performance of the natural gas distribution, storage and
transportation business conducted by Consumers and Michigan Gas Storage,
such businesses, collectively, will be attributed to the "Consumers Gas
Group". Dividends on the Class G Common Stock are paid at the discretion
of the Board of Directors based primarily upon the earnings and financial
condition of the Consumers Gas Group, and, to a lesser extent, the
Corporation as a whole. Subject to the restrictions described below, if
the earnings and financial condition of the Consumers Gas Group permit,
dividends with respect to the Class G Common Stock are expected to be paid
commensurate with dividend practices of comparable publicly-held local
natural gas distribution companies generally. Management believes that
such practices currently are to pay out from 70% to 85% of annual earnings
available for common stock. The Corporation, in the sole discretion of its
Board of Directors, could pay dividends exclusively to the holders of
CMS Energy Common Stock, exclusively to the holders of Class G Common
Stock, or to the holders of both of such classes in equal or unequal
amounts. It is the Board of Directors' current intention that the
declaration or payment of dividends with respect to the Class G Common
Stock will not be reduced, suspended or eliminated as a result of factors
arising out of or relating to the electric utility business or the non-
utility businesses of CMS Energy unless such factors also require, in the
Board of Directors' sole discretion, the omission of the declaration or
reduction in payment of dividends on both the CMS Energy Common Stock and
the Class G Common Stock. While the Board of Directors does not currently
intend to change this dividend policy, it reserves the right to do so at
any time and from time to time. Under the Articles of Incorporation and
Michigan law, the Board of Directors is not required to declare, and the
Corporation is not required to pay, dividends in accordance with the
foregoing dividend policy.
Dividends on the Class G Common Stock are limited by Michigan law,
certain agreements to which the Corporation is a party and the Articles of
Incorporation and will be payable when, as and if declared by the Board of
Directors out of the lesser of (i) the assets of the Corporation legally
available therefor and (ii) the Available Class G Dividend Amount (as
defined in the Articles of Incorporation). Dividends on the CMS Energy
Common Stock are similarly limited and will be payable when, as and if
declared by the Board of Directors out of the assets of the Corporation
legally available therefor, including the Available Class G Dividend
Amount. There can be no assurance that there will be an Available Class G
Dividend Amount.
The ability of the Corporation to pay dividends on its Class G Common
Stock and CMS Energy Common Stock also depends, and will depend,
substantially upon timely receipt of sufficient dividends or other
distributions from its subsidiaries, in particular Consumers. Consumers'
ability to pay dividends on its Common Stock depends on its revenues,
earnings and other factors. As a regulated entity, Consumers' rates are
set by the MPSC.
Stock Transfer Agent and Registrar
The Transfer Agent and the Registrar for the Common Stock is the
Corporation and Preferred Stock is Consumers.
EXPERTS
The consolidated financial statements and schedules of the Corporation
as of December 31, 1994 and 1993, and for each of the three years in the
period ended December 31, 1994 incorporated by reference herein, have been
audited by Arthur Andersen LLP (formerly Arthur Andersen & Co.),
independent public accountants, as indicated in their reports with respect
thereto, and are included herein in reliance upon the authority of said
firm as experts in accounting and auditing in giving said reports.
Future consolidated financial statements of the Corporation and the
reports thereon of Arthur Andersen LLP will also be incorporated by
reference herein in reliance upon the authority of that firm as experts in
giving those reports to the extent that said firm has audited said
consolidated financial statements and consented to the use of their
reports thereon.
With respect to the unaudited interim consolidated financial
information for the periods ended June 30, 1995 and 1994, Arthur Andersen
LLP has applied limited procedures in accordance with professional
standards for a review of such information. However, their separate
report thereon states that they did not audit and they did not express an
opinion on that interim consolidated financial information. Accordingly,
the degree of reliance on their report on that information should be
restricted in light of the limited nature of the review procedures
applied. In addition, the accountants are not subject to the liability
provisions of Section 11 of the Securities Act for their report on the
unaudited interim consolidated financial information because that report
is not a "report" or "part" of the registration statement prepared or
certified by the accountants within the meaning of Sections 7 and 11 of
the Securities Act.
--------------
No persons have been authorized to give any information or to make any
representations other than those contained in this Prospectus, including
documents incorporated by reference, and, if given or made, such
information or representations must not be relied upon as having been
authorized. This Prospectus does not constitute an offer to sell or a
solicitation of an offer to buy any securities other than those to which
it relates, or an offer or solicitation with respect to those securities
to which it relates to any person in any jurisdiction where such offer or
solicitation would be unlawful.
Neither the delivery of this Prospectus at any time nor any sale made
at any time hereunder shall, under any circumstances, imply that the
information contained or incorporated herein is correct at any time
subsequent to its date.
LEGAL OPINIONS
An opinion as to the legality of the securities offered hereby has
been rendered by Denise M. Sturdy, Assistant General Counsel for the
Corporation.
A-1
APPENDIX A
Definitions of Selected Terms
Common Stock: (1) CMS Energy Common Stock, (2) Class G Common Stock, or
(3) any other class of common stock that may be issued by
the Corporation.
Consumers: Consumers Power Company.
Corporation: CMS Energy Corporation.
Dividend: Cash dividends paid on Common Stock or Preferred Stock.
Eligible
Securities: All classes of Common Stock and Preferred Stock.
Employees: All employees (including part-time employees but excluding
temporary and contract employees) of the Corporation and
its subsidiaries.
Employee Payroll
Deduction
Authorization
Form: The documentation that authorizes the Plan to make payroll
deductions for purchase of shares of Common Stock.
Independent
Agent: An agent independent of the Corporation who satisfies
applicable legal requirements (including, without
limitation, the requirements of Rule 10b-6 and Rule 10b-18
promulgated under the Exchange Act) and who has been
selected by the Corporation to serve as an Independent
Agent for purposes of making open market purchases and
sales of Common Stock under the Plan. Must be in U.S.
Funds and made payable to CMS Energy Stock Plan
Investments: Initial and optional payments to purchase Common Stock
through the Plan. (These can be deductions automatic from
a bank account, personal checks, money orders and other
forms of U.S. funds payable to CMS Stock Plan.)
Investment
Date: Generally, the first trading day of the month.
Maximum
Amount: $120,000 per class of Common Stock per calendar year.
Newly Issued
Shares: The authorized but unissued shares of Common Stock.
NYSE: New York Stock Exchange.
Plan: The Stock Purchase Plan.
Preferred
Stock: The preferred stock of Consumers.
Purchase
Price: The price per share of authorized but previously unissued
Common Stock will be the average of the closing sale
prices for Common Stock, as published in the Wall Street
Journal in the report of the NYSE-Composite Transactions
for each of the five trading days immediately preceding
the Investment Date. The Purchase Price of shares of
Common Stock purchased on the open market will be the
weighted average price paid by the Corporation (or its
independent agent) for the shares excluding any related
brokerage commissions. The Corporation will pay all
related brokerage commissions.
Request Form: The form used for the sale, gifting, transfer, and
withdrawal of plan shares and for termination of the plan
account.
Sale Price: The price of shares of Common Stock sold through the Plan
will be the weighted average price per share of the total
shares of each class sold for the relevant Investment
Date. This sale price will include the cost of brokerage
commissions, related service charges, and applicable
transfer taxes incurred.
Trading Day: Any day on which trades are reported on the NYSE.
II-1
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Estimated
Amount
Filing fee -- Securities and Exchange
Commission . . . . . . . . . . . . . . . . . . $ 69,254
Listing Fee -- New York Stock Exchange. . . . . . 101,215
Preparation of stock certificates . . . . . . . . 2,000*
Fee of registrar and transfer agent . . . . . . . 5,000*
Printing . . . . . . . . . . . . . . . . . . . . 30,000*
Services of counsel . . . . . . . . . . . . . . . 30,000*
Services of independent public accountants,
Arthur Anderson LLP . . . . . . . . . . . . . . 10,000*
Miscellaneous . . . . . . . . . . . . . . . . . 10,000*
---------
Total:. . . . . . . . . . . . . . . . . . $257,469*
=========
*Estimated
Item 15. Indemnification of Directors and Officers.
The following resolution was adopted by the Board of Directors of
CMS Energy 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 person's 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 Energy's 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 the Restated Articles of Incorporation reads:
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 director's 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
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 the Restated Articles of Incorporation reads:
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 thereafter 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 provides
as follows:
Sec. 561. A corporation has the power to indemnify a person who
was or is a party or is threatened to be made a party to a threatened,
pending, or completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative and whether formal or informal,
other than an action by or in the right of the corporation, by reason of
the fact that he or she 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, partner, trustee, employee, or agent of another
foreign or domestic corporation, partnership, joint venture, trust, or
other enterprise, whether for profit or not, 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 action, suit, or proceeding, if the person acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to
the best interests of the corporation or its shareholders, and with
respect to a criminal action or proceeding, if the person had no
reasonable cause to believe his or her conduct was unlawful. The
termination of an action, suit, or proceeding by judgment, order,
settlement, conviction, or upon a plea of nolo contendere or its
equivalent, does not, of itself, create a presumption that the person did
not act in good faith and in a manner which he or she reasonably believed
to be in or not opposed to the best interests of the corporation or its
shareholders, and, with respect to a criminal action or proceeding, had
reasonable cause to believe that his or her conduct was unlawful.
Sec. 562. A corporation has the power to indemnify a person who
was or is a party or is threatened to be made a party to a threatened,
pending, or completed action or suit by or in the right of the corporation
to procure a judgment in its favor by reason of the fact that he or she 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,
partner, trustee, employee, or agent of another foreign or domestic
corporation, partnership, joint venture, trust, or other enterprise,
whether for profit or not, against expenses, including attorneys' fees,
and amounts paid in settlement actually and reasonably incurred by the
person in connection with the action or suit, if the person acted in good
faith and in a manner the person reasonably believed to be in or not
opposed to the best interests of the corporation or its shareholders.
Indemnification shall not be made for a claim, issue, or matter in which
the person has been found liable to the corporation except to the extent
authorized in section 564c.
Sec. 563. To the extent that a director, officer, employee, or
agent of a corporation has been successful on the merits or otherwise in
defense of an action, suit, or proceeding referred to in section 561 or
562, or in defense of a claim, issue, or matter in the action, suit, or
proceeding, he or she shall be indemnified against actual and reasonable
expenses, including attorneys' fees, incurred by him or her in connection
with the action, suit, or proceeding and an action, suit, or proceeding
brought to enforce the mandatory indemnification provided in this section.
Section 564a. (1) An indemnification under section 561 or 562,
unless ordered by the court, shall be made by the corporation only as
authorized in the specific case upon a determination that indemnification
of the director, officer, employee, or agent is proper in the
circumstances because he or she has met the applicable standard of conduct
set forth in sections 561 and 562 and upon an evaluation of the
reasonableness of expenses and amounts paid in settlement. This
determination and evaluation shall be made in any of the following ways:
(a) By a majority vote of a quorum of the board consisting of
directors who are not parties or threatened to be made parties to the
action, suit, or proceeding.
(b) If a quorum cannot be obtained under subdivision (a), by
majority vote of a committee duly designated by the board and consisting
solely of 2 of more directors not at the time parties or threatened to be
made parties to the action, suit, or proceeding.
(c) By independent legal counsel in a written opinion, which
counsel shall be selected in 1 of the following ways:
(i) By the board or its committee in the manner prescribed
in subdivision (a) or (b).
(ii) If a quorum of the board cannot be obtained under
subdivision (a) and a committee cannot be designated under
subdivision (b), by the board.
(d) By all independent directors who are not parties or
threatened to be made parties to the action, suit, or proceeding.
(e) By the shareholders, but shares held by directors, officers,
employees, or agents who are parties or threatened to be made parties of
the action, suit, or proceeding may not be voted.
(2) In the designation of a committee under subsection (1)(b) or
in the selection of independent legal counsel under subsection (1)(c)(ii),
all directors may participate.
(3) If a person is entitled to indemnification under section 561
or 562 for a portion of expenses, including reasonable attorneys' fees,
judgments, penalties, fines, and amounts paid in settlement, but not for
the total amount, the corporation may indemnify the person for the portion
of the expenses, judgments, penalties, fines, or amounts paid in
settlement for which the person is entitled to be indemnified.
Sec. 564b. (1) A corporation may pay or reimburse the reasonable
expenses incurred by a director, officer, employee, or agent who is a
party or threatened to be made a party to an action, suit, or proceeding
in advance of final disposition of the proceeding if all of the following
apply:
(a) The person furnishes the corporation a written affirmation of
his or her good faith belief that he or she has met the applicable
standard of conduct set forth in sections 561 and 562.
(b) The person furnishes the corporation a written undertaking,
executed personally or on his or her behalf, to repay the advance if it is
ultimately determined that he or she did not meet the standard of conduct.
(c) A determination is made that the facts then known to those
making the determination would not preclude indemnification under this
act.
(2) The undertaking required by subsection (1)(b) must be an
unlimited general obligation of the person but need not be secured.
(3) Determinations and evaluations under this section shall be
made in the manner specified in section 564a.
Section 564c. A director, officer, employee, or agent of the
corporation who is a party or threatened to be made a party to an action,
suit, or proceeding may apply for indemnification to the court conducting
the proceeding or to another court of competent jurisdiction. On receipt
of an application, the court after giving any notice it considers
necessary may order indemnification if it determines that the person is
fairly and reasonably entitled to indemnification in view of all the
relevant circumstances, whether or not he or she met the applicable
standard of conduct set forth in sections 561 and 562 or was adjudged
liable as described in section 562, but if he or she was adjudged liable,
his or her indemnification is limited to reasonable expenses incurred.
Sec. 565. (1) The indemnification or advancement of expenses
provided under sections 561 to 564c is not exclusive of other rights to
which a person seeking indemnification or advancement of expenses may be
entitled under the articles of incorporation, bylaws, or a contractual
agreement. The total amount of expenses advanced or indemnified from all
sources combined shall not exceed the amount of actual expenses incurred
by the person seeking indemnification or advancement of expenses.
(2) The indemnification provided for in sections 561 to 565
continues as to a person who ceases to be a director, officer, employee,
or agent and shall inure to the benefit of the heirs, personal
representatives, and administrators of the person.
Sec. 567. A corporation shall have power to purchase and maintain
insurance 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, partner, trustee, employee, or
agent of another corporation, partnership, joint venture, trust, or other
enterprise against any liability asserted against him or her and incurred
by him or her in any such capacity or arising out of his or her status as
such, whether or not the corporation would have power to indemnify him or
her against liability under sections 561 to 565.
Sec. 569. For purposes of sections 561 to 567, "corporation"
includes all constituent corporations absorbed in a consolidation or
merger and the resulting or surviving corporation, so that a person who is
or was a director, officer, partner, trustee, employee, or agent of the
constituent corporation or is or was serving at the request of the
constituent corporation as a director, officer, employee, or agent of
another foreign or domestic corporation, partnership, joint venture,
trust, or other enterprise whether for profit or not shall stand in the
same position under the provisions of this section with respect to the
resulting or surviving corporation as the person would if he or she had
served the resulting or surviving corporation in the same capacity.
Sec. 571. For the purposes of sections 561 to 567:
(a) "Fines" shall include any excise taxes assessed on a person
with respect to an employee benefit plan.
(b) "Other enterprises" shall include employee benefit plans.
(c) "Serving at the request of the corporation" shall include any
service as a director, officer, employee, or agent of the corporation
which imposes duties on, or involves services by, the director, officer,
employee, or agent with respect to an employee benefit plan, its
participants, or its beneficiaries.
(d) A person who acted in good faith and in a manner he or she
reasonably believed to be in the interest of the participants and
beneficiaries of an employee benefit plan shall be considered to have
acted in a manner "not opposed to the best interests of the corporation or
its shareholders" as referred to in sections 561 and 562.
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 the Corporation or the
Corporation's subsidiaries and the Corporation's 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 the Corporation's request. In
addition, the Corporation 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.
Item 16. Exhibits.
Exhibit
Number Description
(3)(a)* Restated Articles of Incorporation of CMS Energy Corporation.
(Designated in CMS Energy's Form S-4 dated June 6, 1995, File
No. 1-9513, as Exhibit (3)(i).)
(3)(b)* By-Laws of CMS Energy Corporation. (Designated in CMS Energy's
Form 10-K for the year ended December 31, 1994, File No. 1-9513,
as Exhibit (3)(b).)
(4)(a)* Indenture dated as of September 15, 1992 between CMS Energy
Corporation and NBD Bank, National Association, as Trustee.
(Designated in CMS Energy's Form S-3 Registration Statement filed
May 1, 1992, File No. 33-47629, as Exhibit (4)(a).)
First Supplemental Indenture dated as of October 1, 1992 between
CMS Energy Corporation and NBD Bank, National Association, as
Trustee. (Designated in CMS Energy's Form 8-K dated October 1,
1992, File No. 1-9513, as Exhibit (4).)
Second Supplemental Indenture dated as of October 1, 1992 between
CMS Energy Corporation and NBD Bank, National Association, as
Trustee. (Designated in CMS Energy's Form 8-K dated October 1,
1992, File No. 1-9513, as Exhibit (4)(a).)
(4)(b)* Indenture dated as of January 15, 1994 between CMS Energy
Corporation and The Chase Manhattan Bank, N.A., as Trustee.
(Designated in CMS Energy's Form 8-K dated March 29, 1994, File
No. 1-9513, as Exhibit (4)(a).)
First Supplemental Indenture dated as of January 20, 1994 between
CMS Energy Corporation and The Chase Manhattan Bank, N.A., as
Trustee. (Designated in CMS Energy's Form 8-K dated March 29,
1994, File No. 1-9513, as Exhibit (4)(b).)
(4)(c)* Credit Agreement dated as of July 29, 1994 among CMS Energy
Corporation, Citibank, N.A. and Union Bank as co-agents and
certain banks named therein, and the Exhibits thereto.
(Designated in CMS Energy's Form 10-Q for the quarter ended
June 30, 1994, File No. 1-9513, as Exhibit (4).)
(4)(d) Form of CMS Energy Corporation's Stock Purchase Plan.
(5) Opinion of Denise M. Sturdy, Esq., Assistant General Counsel for
CMS Energy Corporation.
(15) Letter re: unaudited financial information.
(23)(a) Consent of Denise M. Sturdy, Esq., Assistant General Counsel for
CMS Energy Corporation (included in Exhibit 5 above).
(23)(b) Consent of Arthur Andersen LLP.
(24) Power of Attorney and certified copy of resolution authorizing
officer to sign registration.
______________________
* Previously filed.
Exhibits listed above which have been filed with the
Securities and Exchange Commission are incorporated herein by reference
with the same effect as if filed with this registration statement.
Item 17. Undertakings.
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 thereof) 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 a 20% 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; (iv) 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; provided, however, that (i) and
(ii) do not apply if the registration statement is on Form S-3 or Form S-8
and the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in 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 post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934
(and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Securities Exchange Act of 1934)
that is incorporated by reference in this registration statement shall be
deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(5) 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 provisions described
under Item 15 above 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.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, 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 Dearborn, and State of Michigan,
on this 12th day of September, 1995.
CMS ENERGY CORPORATION
By /s/ A M Wright
-------------------------
Alan M. Wright
Senior Vice President, Chief
Financial Officer and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in
the capacities and on this 12th day of September, 1995.
Name Title
(i) Principal executive officer:
Chairman of the Board,
Chief Executive Officer
/s/ William T. McCormick, Jr. and Director
-------------------------------------
(William T. McCormick, Jr.)
(ii) Principal financial officer:
Senior Vice President, Chief
/s/ A M Wright Financial Officer and Treasurer
-------------------------------------
(Alan M. Wright)
(iii) Controller or principal
accounting officer:
Vice President, Controller
/s/ P. D. Hopper and Chief Accounting Officer
-------------------------------------
(Preston D. Hopper)
Name Title
Director
-------------------------------------
(Victor J. Fryling)
* Director
-------------------------------------
(Earl D. Holton)
* Director
-------------------------------------
(Lois A. Lund)
* Director
-------------------------------------
(Kenneth Whipple)
* Director
-------------------------------------
(Frank H. Merlotti)
* Director
-------------------------------------
(W. U. Parfet)
* Director
-------------------------------------
(Percy A. Pierre)
* Director
-------------------------------------
(Kathleen R. Flaherty)
* Director
-------------------------------------
(S. Kinnie Smith, Jr.)
* Director
-------------------------------------
(John B. Yasinsky)
* Director
-------------------------------------
(James J. Duderstadt)
*By /s/ A M Wright
-------------------------------------
(Alan M. Wright)
Attorney-in-fact
==========================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CMS ENERGY CORPORATION
EXHIBITS
==========================================================================
EXHIBIT INDEX
Exhibit
Number Description
(3)(a)* Restated Articles of Incorporation of CMS Energy Corporation
(Designated in CMS Energy's Form S-4 dated June 6, 1995 File
No. 1-9513 as Exhibit (3)(i).)
(3)(b)* By-Laws of CMS Energy Corporation. (Designated in CMS Energy's
Form 10-K for the year ended December 31, 1994, File No. 1-9513,
as Exhibit (3)(b).)
(4)(a)* Indenture dated as of September 15, 1992 between CMS Energy
Corporation and NBD Bank, National Association, as Trustee.
(Designated in CMS Energy's
Form S-3 Registration Statement filed May 1, 1992,
File No. 33-47629, as Exhibit (4)(a).)
First Supplemental Indenture dated as of October 1, 1992 between
CMS Energy Corporation and NBD Bank, National Association, as
Trustee. (Designated in CMS Energy's Form 8-K dated October 1,
1992, File No. 1-9513, as
Exhibit (4).)
Second Supplemental Indenture dated as of October 1, 1992 between
CMS Energy Corporation and NBD Bank, National Association, as
Trustee. (Designated in CMS Energy's Form 8-K dated October 1,
1992, File No. 1-9513, as Exhibit (4)(a).)
(4)(b)* Indenture dated as of January 15, 1994 between CMS Energy
Corporation and The Chase Manhattan Bank, N.A., as Trustee.
(Designated in CMS Energy's Form 8-K dated March 29, 1994, File
No. 1-9513, as Exhibit (4)(a).)
First Supplemental Indenture dated as of January 20, 1994 between
CMS Energy Corporation and The Chase Manhattan Bank, N.A., as
Trustee. (Designated in CMS Energy's Form 8-K dated March 29,
1994, File No. 1-9513, as Exhibit (4)(b).)
(4)(c)* Credit Agreement dated as of July 29, 1994 among CMS Energy
Corporation, Citibank, N.A. and Union Bank as co-agents and
certain banks named therein, and the Exhibits thereto.
(Designated in CMS Energy's Form 10-Q for the quarter ended
June 30, 1994, File No. 1-9513, as Exhibit (4).)
(4)(d) Form of CMS Energy Corporation's Stock Purchase Plan.
(5) Opinion of Denise M. Sturdy, Esq., Assistant General Counsel for
CMS Energy Corporation.
(15) Letter re: unaudited financial information.
(23)(a) Consent of Denise M. Sturdy, Esq., Assistant General Counsel for
CMS Energy Corporation, (included in Exhibit 5 above).
(23)(b) Consent of Arthur Andersen LLP.
(24) Power of Attorney and certified copy of resolution authorizing
officer to sign registration.
_______________________
* Previously filed.
Exhibits listed above which have been filed with the
Securities and Exchange Commission are incorporated herein by reference
with the same effect as if filed with this registration statement.
EX-4
2
EX-4(D) FORM OF STOCK PURCHASE PLAN
EXHIBIT 4(d)
Exhibit 4(d)
____________
CMS ENERGY CORPORATION
Stock Purchase Plan
____________
CMS Energy Corporation, a Michigan corporation (the "Corporation"), hereby
amends and restates its CMS Energy Dividend Reinvestment and Common Stock
Purchase Plan, as amended and restated effective June 23, 1993 (the
"DRIP"), in its entirety to establish the following CMS Energy Corporation
Stock Purchase Plan (the "Plan"):
The DRIP has been in existence since November 1971, and
The Corporation desires to amend and restate the DRIP to include other
stock purchase opportunities and services in an effort to enhance its
attractiveness to investors in all classes of the Corporation's common
stock, par value $.01 and without par value; and
The purpose of the Plan is to provide interested investors and holders of
common stock of the Corporation and/or preferred stock of its subsidiary,
Consumers Power Company, a convenient, economical means of increasing
their investment in the Corporation through (i) regular investment of cash
dividends paid, (ii) optional cash investments and/or (iii) initial cash
investments in shares of the Corporation's Common Stock.
ARTICLE I
Definitions
The terms defined in this Article I shall, for all purposes of this Plan,
have the following respective meanings:
Account
The term "Account" shall mean, as to any Participant, the account
maintained by the Administrator evidencing (i) the shares (and/or
fractional shares) of Common Stock (a) purchased through the Plan and/or
(b) deposited by such Participant into the Plan pursuant to Section 4.1
hereof, and credited to such Participant and (ii) cash held in the Plan
pending investment in Common Stock for such Participant.
Account Shares
The term "Account Shares" shall mean all shares (and/or fractional shares)
of Common Stock credited to the Account of a Participant by the
Administrator, which shall include shares deposited into the Plan pursuant
to Section 4.1 hereof.
Administrator
The term "Administrator" shall mean the individual (who may be an employee
of the Corporation), bank, trust company or other entity (including the
Corporation) appointed from time to time by the Corporation to act as
Administrator hereunder.
Authorization Form
The term "Authorization Form" shall mean the documentation that the
Administrator (i) shall require to be completed and received prior to an
investor's enrollment in the Plan pursuant to Section 2.2 or 2.3 hereof, a
Participant's changing his options under the Plan pursuant to Section 7.1
hereof, or a Participant's depositing shares of Common Stock into the Plan
pursuant to Section 4.1 hereof and (ii) may require to be completed and
received prior to an optional cash investment pursuant to Section 2.4
hereof.
Class G Common Stock
The term "Class G Common Stock" shall mean the Class G common stock, no
par value.
CMS Energy Common Stock
The term "CMS Energy Common Stock" shall mean of common stock, $.01 par
value, of CMS Energy.
Common Stock
The term "Common Stock," shall include (i) CMS Energy Common Stock,
(ii) Class G Common Stock, or (iii) any other class of common stock issued
by the Corporation.
Corporation
The term "Corporation" shall mean CMS Energy Corporation.
Corporation Share Purchase Price
The term "Corporation Share Purchase Price," when used with respect to
newly issued shares of Common Stock, shall mean the average of the closing
sales prices, computed to three decimal places, of each class of the
Common Stock as reported on the NYSE for the last five Trading Days of the
previous calendar month.
Direct Deposit Authorization Form
The term "Direct Deposit Authorization Form" shall mean the documentation
that the Administrator shall require to forward non-reinvested Dividends
to the Participant's predesignated bank, savings or credit union account
pursuant to Section 7.7 hereof.
Dividend
The term "Dividend" shall mean cash dividends paid on Common Stock or
Preferred Stock.
Dividend Payment Date
The term "Dividend Payment Date" shall mean a date on which a cash
dividend on shares of Common Stock or Preferred Stock is paid.
DRIP
The term "DRIP" shall mean the CMS Energy Dividend Reinvestment and Common
Stock Purchase Plan.
Eligible Securities
The term "Eligible Securities" shall mean those securities of the
Corporation and its Subsidiaries, whether issued prior to, on or after the
date hereof, set forth in Section 6.1 hereof, and such other securities
the Corporation may designate, in its sole discretion, pursuant to Section
6.2 hereof.
Employee
The term "Employee" shall mean all employees (including part-time
employees but excluding temporary and contract employees) of the
Corporation and its subsidiaries.
Exchange Act
The term "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations thereunder.
Foreign Person
The term "Foreign Person" shall mean a Person that is a citizen or
resident of, or is organized or incorporated under, or has its principal
place of business in, a country other than the United States, its
territories and possessions.
Independent Agent
The term "Independent Agent" shall mean an agent independent of the
Corporation who satisfies applicable legal requirements (including,
without limitation, the requirements of Rule 10b-6 and Rule 10b-18
promulgated under the Exchange Act) and who has been selected by the
Corporation, pursuant to Section 10.6 hereof, to serve as an Independent
Agent for purposes of making open market purchases and sales of Common
Stock under the Plan.
Investments
The term "Investments" shall mean initial payments or optional payments to
purchase common stock through the Plan. (These can be automatic
deductions from bank accounts, personal checks, money orders and other
forms of U.S. funds payable to CMS Stock Plan.)
Investment Date
The term "Investment Date" shall mean, generally, the first Trading Day of
the month.
Market Share Purchase Price
The term "Market Share Purchase Price," when used with respect to shares
of Common Stock purchased in the open market, shall mean the weighted
average purchase price per share of the aggregate number of shares of each
class purchased in the open market for an Investment Date (excluding any
related brokerage commissions). The Corporation will pay all related
brokerage commissions and service fees, however, the Participant will be
responsible for all applicable taxes.
Market Share Sales Price
The term "Market Share Sales Price," when used with respect to shares of
Common Stock sold under the Plan, shall mean the weighted average sales
price per share (less brokerage fees and commissions, any related service
charges and any transfer taxes) of the aggregate number of shares of each
class sold in the open market for the relevant period.
Maximum Amount
The term "Maximum Amount" shall mean $120,000 per class of Common Stock
per calendar year.
NYSE
The term "NYSE" shall mean the New York Stock Exchange.
Participant
The term "Participant" shall mean a participant in the Plan.
Person
The term "Person" shall mean any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock
company, trust, estate or unincorporated organization.
Plan
The term "Plan" shall mean the Stock Purchase Plan.
Preferred Stock
The term "Preferred Stock", shall mean the preferred stock of Consumers
Power Company.
Request Form
The term "Request Form" shall mean the documentation that the
Administrator shall require to be completed and received prior to a
Participant's (i) sale of Account Shares pursuant to Section 5.1 hereof,
(ii) gift or transfer of Account Shares pursuant to Section 5.2 hereof,
(iii) withdrawal of whole Account Shares pursuant to Section 7.2 hereof
(unless such Participant will be the record holder of such Account Shares
after withdrawal) and (iv) termination of participation in the Plan
pursuant to Section 7.3 hereof.
Statement of Account
The term "Statement of Account" shall mean a written statement prepared by
the Administrator and sent to each Participant which reflects (i) current
transactions completed under the Plan, (ii) the number of Account Shares
credited to such Participant's Account at the date of such statement,
(iii) the amount of cash, if any, credited to such Participant's Account
pending investment at the date of such statement and (iv) such additional
information regarding such Participant's Account as the Administrator may
determine to be pertinent to the Participant.
Trading Day
The term "Trading Day" shall mean any day on which trades are reported on
the NYSE.
A pronoun or adjective in the masculine gender includes the feminine
gender, and the singular includes the plural, unless the context clearly
indicates otherwise.
ARTICLE II
Participation
Section 2.1. Participation. Any Person, whether or not a record holder
of Common Stock, may elect to participate in the Plan; provided, however,
that if such Person is a Foreign Person, he must provide evidence
satisfactory to the Administrator that his participation in the Plan would
not violate local laws applicable to the Corporation, the Plan or such
Foreign Person.
An election by a Person to participate in the Plan shall be made by
completing and returning to the Administrator an Authorization Form and
(i) electing to have Dividends on Eligible Securities of which such Person
is the record holder invested in the appropriate class of Common Stock
pursuant to Section 2.2 hereof, (ii) depositing certificates representing
Common Stock of which such person is the record holder into the Plan
pursuant to Section 4.1 hereof or (iii) making an initial Investment
pursuant to Section 2.3 hereof.
Any Person who has met such requirements and has made and not revoked such
election is herein referred to as a "Participant." Notwithstanding the
foregoing, each participant in the DRIP on the date hereof is
automatically a Participant without submitting a new Authorization Form;
provided, however, that any such Participant who wishes to change his
current participation in any way must submit a new Authorization Form to
the Administrator. A Participant may elect to participate in any or all
of the forms of investment provided in Sections 2.2 through 2.4 hereof and
to utilize the Plan's safekeeping services provided in Section 4.1 hereof
by submitting an Authorization Form designating such election to the
Administrator; provided, however, that a Participant may elect to make
optional Investments pursuant to Section 2.4 hereof by submitting to the
Administrator a completed optional Investment stub attached to a Statement
of Account in lieu of an Authorization Form.
Section 2.2. Dividend Reinvestment. A Participant may elect to have all
or a portion of any Dividend on his Preferred Stock or Common Stock
invested in shares (and/or fractional shares) of the appropriate class of
Common Stock to be credited to his Account in lieu of receiving such
Dividend directly. Any Dividends payable on CMS Energy Common Stock or on
Preferred Stock will be invested only in CMS Energy Common Stock. All
Dividends payable on Class G Common Stock will be invested only in Class G
Common Stock. If the shareholders authorize, and the Corporation issues,
shares of any additional class or classes of Common Stock, any Dividend
payable upon such class or classes will be invested only in the same class
of Common Stock. If a Participant elects to reinvest only a portion of
the Dividends received on shares of Common Stock or Preferred Stock, that
portion of such Dividends not reinvested in Common Stock will be sent to
the Participant by check in the manner otherwise associated with payment
of such Dividends or by electronic direct deposit if the Participant has
elected the direct deposit option provided in Section 7.7 hereof.
Section 2.3. Initial Investment. A Person not already a Participant may
become a Participant by (i) making an initial Investment of at least $500
per class of Common Stock being invested in, or (ii) in the case of a
Person who is already a registered shareholder of Common Stock, of at
least $25 per class of Common Stock being invested in, by personal check
or money order payable to CMS Stock Plan, or wire transfer (upon prior
approval of the Administrator), to be invested in Common Stock pursuant to
Section 3.4 hereof; provided, however, that payment for such initial
Investment must be accompanied by a completed Authorization Form. Such
payment will be invested in the class of Common Stock indicated on the
Authorization Form, provided, however, that if no class of Common Stock is
indicated on the Authorization Form, the initial Investment will be
invested in CMS Energy Common Stock. An Employee not already a
Participant may become a Participant by (i) making an initial investment
of $25 and completing an Authorization Form or (ii) electing payroll
deductions and completing an employee payroll deduction authorization
form.
Section 2.4. Optional Investments. A Participant may elect to make cash
payments at any time or from time to time, to the Plan, by personal check
or money order payable to CMS Stock Plan, or wire transfer (upon prior
approval of the Administrator), for investment in Common Stock pursuant to
Section 3.4 hereof; provided, however, that any Participant who elects to
make optional Investments pursuant to this Section 2.4 must invest at
least $25 for any single investment and may not invest more than the
Maximum Amount. For purposes of determining whether the Maximum Amount
has been reached, initial Investments shall be counted as optional
Investments. A Participant may elect to purchase any class of Common
Stock by making such optional Investments, but each single investment must
be at least $25 per class of Common Stock. Optional Investments will be
applied to the currently held class of Common Stock unless otherwise
indicated. If the Participant holds more than one class of Common Stock,
and no designation is made, the funds will be applied to CMS Energy Common
Stock.
ARTICLE III
Dividend Reinvestment and Stock Purchase
Section 3.1. Dividend Reinvestment. Dividends as to which reinvestment
has been elected by a Participant shall be paid to the Administrator or
its nominee on behalf of such Participant. Dividends shall be reinvested,
at the Corporation's election, in either (i) newly issued shares of Common
Stock purchased from the Corporation, or (ii) shares of Common Stock
purchased in the open market.
Section 3.2. Dividend Reinvestment in Newly Issued Shares. Dividend
reinvestment in newly issued shares of Common Stock shall be governed by
this Section 3.2. On an Investment Date with respect to which the
Corporation elects to issue new shares to the Plan in order to effect the
reinvestment of Dividends, the Corporation shall issue to the
Administrator upon the Corporation's receipt of the funds described in (a)
below, for crediting by the Administrator to the Account of a Participant,
a number of shares (and/or fractional shares rounded to three decimal
places) of Common Stock equal to (a) the amount of any Dividends paid to
the Administrator on behalf of such Participant since the preceding
Investment Date plus the amount of any Dividends paid to the Administrator
on behalf of such Participant on such Investment Date divided by (b) the
Corporation Share Purchase Price with respect to the Investment Date.
Such shares shall be issued or sold to, and registered in the name of, the
Administrator or its nominee as custodian for such Participants. No
interest shall be paid on Dividends held pending reinvestment pursuant to
this Section 3.2.
Section 3.3. Dividend Reinvestment in Shares Purchased in the Open
Market. Dividend reinvestment in shares of Common Stock purchased in the
open market shall be governed by this Section 3.3. On an Investment Date
with respect to which the Corporation elects to effect reinvestment of
Dividends in shares of Common Stock purchased in the open market, the
Administrator shall (if it is an Independent Agent), or shall cause an
Independent Agent to, apply the amount of any Dividends paid to the
Administrator on behalf of the Participants since the preceding Investment
Date plus the amount of any Dividends paid to the Administrator on behalf
of the Participants on such Investment Date to the purchase of shares of
Common Stock in the open market. Purchases in the open market pursuant to
this Section 3.3 and Subsection 3.4.2 hereof may be, but are not required
to be, made on the applicable Investment Date and should be completed as
soon as practicable thereafter, or at a later date as necessary or
advisable under applicable law, including without limitation any federal
securities laws. Any Dividends to be reinvested in shares of Common Stock
purchased in the open market pursuant to this Section 3.3 and Subsection
3.4.2 hereof not reinvested in shares of Common Stock within 30 days of
receipt by the Administrator, or, if the Corporation is not the
Administrator, by the Corporation, shall be promptly returned to the
Participant by First Class Mail at his address of record. Open market
purchases pursuant to this Section 3.3 and Subsection 3.4.2 hereof may be
made on any securities exchange on which the Common Stock is traded, in
the over-the-counter market or by negotiated transactions, and may be upon
such terms and subject to such conditions with respect to price and
delivery to which the Independent Agent (including the Administrator if it
is also an Independent Agent) may agree. With regard to open market
purchases of shares of Common Stock pursuant to this Section 3.3 and
Subsection 3.4.2 hereof, none of the Corporation, the Administrator (if it
is not also serving as the Independent Agent) or any Participant shall
have any authority or power to direct the time or price at which shares of
Common Stock may be purchased, the markets on which such shares are to be
purchased (including on any securities exchange, in the over-the-counter
market or in negotiated transactions) or the selection of the broker or
dealer (other than the Independent Agent) through or from whom purchases
may be made, except that the timing of such purchases must be made in
accordance with the terms and conditions of the Plan. For the purpose of
making, or causing to be made, purchases of shares of Common Stock
pursuant to this Section 3.3 and Subsection 3.4.2 hereof, and sales of
Account Shares pursuant to Section 5.1 hereof, the Independent Agent shall
be entitled to commingle each Participant's funds with those of all other
Participants and to offset purchases of shares of Common Stock against
sales of shares of Common Stock to be made for Participants, resulting in
a net purchase or a net sale of shares. The number of shares (and/or
fractional shares rounded to three decimal places) of Common Stock that
shall be credited to a Participant's Account with respect to an Investment
Date to which this Section 3.3 applies shall be equal to (a) (i) the
amount of any Dividends paid to the Administrator on behalf of such
Participant since the preceding Investment Date plus (ii) the amount of
any Dividends paid to the Administrator on behalf of such Participant on
such Investment Date less (iii) any Dividends to be returned to such
Participant pursuant to this Section 3.3 divided by (b) the Market Share
Purchase Price with respect to such Investment Date. Such shares shall be
registered in the name of the Administrator or its nominee as custodian
for the Participants. No interest shall be paid on Dividends held pending
reinvestment pursuant to this Section 3.3.
Section 3.4. Optional and Initial Investments. Any optional and initial
Investments received by the Administrator from a Participant at least one
business day prior to an Investment Date shall be made, beginning on such
Investment Date, in either (i) newly issued shares of Common Stock in the
manner provided in Subsection 3.4.1 hereof, or (ii) Common Stock purchased
in the open market in the manner provided in Subsection 3.4.2 hereof.
Optional and initial Investments not received by the Administrator by the
business day prior to an Investment Date need not be invested on such
Investment Date; provided, however, that any such optional and initial
Investments not invested on such Investment Date shall be invested
beginning on the next succeeding Investment Date. Optional and initial
Investments not invested in Common Stock within 35 days of receipt shall
be promptly returned to the Participant. No interest shall be paid on
optional and initial Investments held pending investment pursuant to this
Section 3.4.
Subsection 3.4.1 Newly Issued Shares. On an Investment Date with respect
to which the Corporation elects to issue new shares of Common Stock to the
Plan in order to effect the investment of optional and initial
Investments, the Corporation shall issue to the Administrator upon the
Corporation's receipt of the funds described in (a) below, for crediting
by the Administrator to the Account of a Participant, a number of shares
(and/or fractional shares rounded to three decimal places) of Common Stock
equal to (a) the amount of any optional and/or initial Investments
received by the Administrator from such Participant since the preceding
Investment Date (excluding any amounts received from such Participant on
the business day of such Investment Date but including any amounts
received from such Participant on the preceding Investment Date that were
not invested on the preceding Investment Date as set forth in Section 3.4
hereof) divided by (b) the Corporation Share Purchase Price with respect
to the Investment Date. Such shares shall be issued or sold to, and
registered in the name of, the Administrator or its nominee as custodian
for the Participants.
Subsection 3.4.2 Shares Purchased in the Open Market. On an Investment
Date with respect to which the Corporation elects to effect the investment
of optional and initial Investment in shares of Common Stock purchased in
the open market, the Administrator shall (if it is an Independent Agent),
or shall cause an Independent Agent to, purchase for crediting by the
Administrator to the Account of a Participant a number of shares (and/or
fractional shares rounded to three decimal places) of Common Stock in the
open market equal to (a) (i) the amount of any optional and/or initial
Investments received by the Administrator from such Participant since the
preceding Investment Date (excluding any amounts received from such
Participant on the business day of such Investment Date but including any
amounts received from such Participant on the preceding Investment Date as
set forth in Section 3.4 hereof) less (ii) any optional and/or initial
Investments to be returned to such Participant pursuant to Section 3.3
hereof divided by (b) the Market Share Purchase Price with respect to such
Investment Date. Such purchases shall be made in the manner set forth in
Section 3.3 hereof. Such shares shall be registered in the name of the
Administrator or its nominee as custodian for the Participants.
Subsection 3.4.3 Request to Stop Investment. If a written request to
stop an optional or initial Investment is received by the Administrator
from a Participant by the business day before the next Investment Date,
any optional or initial Investments from such Participant then held by the
Administrator shall not be used to purchase Common Stock and shall be
returned to such Participant. If such a request is not received by the
Administrator by the business day prior to an Investment Date, any such
optional and/or initial Investments shall be used to purchase shares of
Common Stock for such Participant's Account.
ARTICLE IV
Safekeeping Services for Deposited Common Stock
Section 4.1. Deposited Common Stock. A Participant may elect to have
certificates representing shares of Common Stock of which the Participant
is the record holder deposited into the Plan by completing an
Authorization Form and delivering such certificates and Authorization Form
to the Administrator. Shares of Common Stock so deposited shall be
transferred into the name of the Administrator or its nominee and credited
to the depositing Participant's Account. Dividends paid on shares of
Common Stock deposited into the Plan pursuant to this Section 4.1 will be
reinvested in the same manner as shares of Common Stock purchased under
the Plan and credited to a Participant's account. If no other shares of
Common Stock are credited to the Participant's Account, the Dividends will
be fully reinvested unless a completed Authorization Form designates a
different election.
Section 4.2. Withdrawal of Common Stock Deposited Pursuant to Section
4.1. Shares of Common Stock deposited pursuant to Section 4.1 hereof may
be withdrawn from the Plan pursuant to Section 7.2 hereof.
ARTICLE V
Sale of Account Shares; Gift or Transfer of Account Shares
Section 5.1. Sale of Account Shares. A Participant may request, at any
time, that all or a portion of his whole Account Shares be sold by
delivering to the Administrator a completed Request Form to that effect.
The Administrator (if it is not also an Independent Agent) shall forward
such sale instructions to the Independent Agent as soon as practicable
after (i) Request Forms for a total of at least 100 shares have been
received and (ii) at least five business days have elapsed since the most
recent forwarding of sale instructions to the Independent Agent. (The
intent is to forward sale instructions to the Independent Agent every five
business days, if sale requests totaling at least 100 shares have been
received.) The Independent Agent shall make such sales as soon as
practicable (in accordance with stock transfer requirements and federal
and state securities laws) after processing such sale instructions. As
soon as practicable following the receipt of proceeds from such sale, the
Administrator shall mail by First Class Mail to such Participant at his
address of record a check in an amount equal to (a) the Market Share Sales
Price multiplied by (b) the number of his Account Shares sold.
If instructions for the sale of shares of Common Stock on which Dividends
are not being reinvested are received by the Administrator on or after the
record date relating to a Dividend Payment Date but before the Dividend
Payment Date, the sale will be processed as described above and a separate
check for the Dividends will be mailed to the Participant following the
Dividend Payment Date or will be directly deposited into the Participant's
designated direct deposit account pursuant to Section 7.7 hereof. If
instructions for the sale of shares of Common Stock on which Dividends are
being reinvested are received by the Administrator on or after the record
date relating to a Dividend Payment Date but before the Investment Date,
and (i) if the Participants' sale instructions cover less than all of the
shares of Common Stock credited to their Accounts, the sale will be
processed as described above in the immediately preceding paragraph, the
Dividends will be invested and the newly purchased shares will be credited
to their Accounts or (ii) if the Participants' sale instructions cover all
of the shares of Common Stock credited to their Accounts, the sale
instructions will be processed and a check for the Dividend will be
provided.
With regard to open market sales of Account Shares pursuant to this
Section 5.1, none of the Corporation, the Administrator (if it is not also
serving as the Independent Agent) or any Participant shall have any
authority or power to direct the time or price at which shares of Common
Stock may be sold, the markets on which such shares are to be sold
(including on any securities exchange, in the over-the-counter market or
in negotiated transactions) or the selection of the broker or dealer
(other than the Independent Agent) through or from whom sales may be made,
except that the timing of such sales must be made in accordance with the
terms and conditions of the Plan.
Section 5.2. Gift or Transfer of Account Shares. A Participant may elect
to transfer (whether by gift, private sale or otherwise) ownership of all
or a portion of his Account Shares to the Account of another Participant
or establish an Account for a Person not already a Participant by
delivering to the Administrator a completed Request Form to that effect
and a stock assignment (stock power), acceptable to the Administrator.
Account Shares transferred in accordance with the preceding paragraph
shall continue to be registered in the name of the Administrator as
custodian and shall be credited to the transferee's Account. If the
transferee is not already a Participant, an Account shall be opened in the
name of the transferee and the Administrator shall send the transferee an
Authorization Form as soon as practicable after such transfer. Unless
otherwise requested by a transferee who is already a Participant on a
completed Authorization Form, the reinvestment of Dividends on such
transferred Account Shares shall be made in proportion to the reinvestment
level (i.e., full, partial or none) of the transferee's other Account
Shares. The Administrator shall deliver a Statement of Account to such
transferee showing the transfer of such Account Shares into his Account.
The transferor may request that the Administrator deliver to such
transferee a gift certificate. The transferor may request that the
Administrator send the gift certificate directly to such transferee or
request that the Administrator deliver such gift certificate to the
transferor for personal delivery to the transferee. The Administrator
shall comply with any such request of a transferor relating to Statements
of Account and/or gift certificates as soon as practicable following
receipt of such request.
If a request for transfer with regard to shares of Common Stock credited
to a Participant's Account on which Dividends are not being reinvested is
received on or after the record date relating to a Dividend Payment Date
but before the Dividend Payment Date, the transfer will be processed as
described above, and a separate check for the Dividend will be mailed to
the transferor following the Dividend Payment Date or will be directly
deposited into the transferor's designated direct deposit account,
pursuant to Section 7.7 hereof. If a completed request for transfer with
regard to shares of Common Stock credited to a Participant's Account on
which Dividends are being reinvested is received by the Administrator on
or after the record date relating to the Dividend Payment Date but before
the Investment Date, the Dividends will be invested in Common Stock
through the Plan, and (i) if the Participant's transfer instructions cover
less than all of the shares of Common Stock credited to his Account, the
transfer will be processed as described above in the immediately preceding
paragraph and the newly purchased shares of Common Stock will be credited
to the transferor's Account or (ii) if the Participant's transfer
instructions cover all of the shares of Common Stock credited to his
Account, the transfer instructions will be processed following the
Investment Date.
ARTICLE VI
Eligible Securities
Section 6.1. Eligible Securities. The following equity securities of the
Corporation and its subsidiaries shall be Eligible Securities:
(i) CMS Common Stock;
(ii) Class G common Stock; and
(iii) Preferred Stock.
Section 6.2. Additional Eligible Securities. The Corporation may from
time to time or at any time designate other debt or equity securities of
the Corporation and its subsidiaries as Eligible Securities by notifying
the Administrator in writing of the designation of such securities as
Eligible Securities.
ARTICLE VII
Treatment of Accounts
Section 7.1. Changing Plan Options. A Participant may elect to change
his Plan reinvestment levels (i.e., full, partial or none) of Dividends by
delivering to the Administrator written instructions or a new
Authorization Form to that effect. To be effective for a Dividend
payment, the Authorization Form must be received by the Administrator by
the business day prior to the record date relating to such Dividend. If
the Authorization Form is not received by the Administrator by the
business day prior to the record date relating to such Dividend, such
instructions shall not become effective until after such payment date.
The shares of Common Stock purchased from the reinvestment of such
Dividend shall be credited to the Participant's Account. After the
Administrator's receipt of effective option changing instructions,
Dividends as to which the reinvestment election has been revoked will be
paid in cash or by direct deposit to the Participant's designated direct
deposit account, if such Participant has elected the direct deposit option
pursuant to Section 7.7 hereof.
Section 7.2. Right of Withdrawal. A Participant may, at any time or from
time to time, withdraw from the Plan all or any part (other than
fractions) of his Account Shares by delivering to the Administrator
(i) appropriate written withdrawal instructions to that effect, if such
Participant will be the record holder of such Account Shares after
withdrawal or (ii) a completed Request Form and a stock assignment (stock
power) to that effect, if the Participant will not be the record holder of
such Account Shares after withdrawal. Subject to the limitations
described in the immediately following paragraph, as soon as practicable
following the Administrator's receipt of (i) appropriate withdrawal
instructions or (ii) a completed Request Form and a stock assignment
(stock power), as the case may be, which indicates the Participant's
desire to withdraw certain of his whole Account Shares, the Administrator
shall mail by First Class Mail to the Participant at his address of
record, or to the address of any Person that the Participant designated,
certificates representing such designated Account Shares.
If a request for withdrawal with regard to shares of Common Stock credited
to a Participant's Account on which Dividends are not being reinvested is
received on or after the record date relating to a Dividend Payment Date
but before the Dividend Payment Date, the withdrawal will be processed as
described above, and a separate check for the Dividend will be mailed to
the Participant following the Dividend Payment Date or will be directly
deposited into the Participant's designated direct deposit account,
pursuant to Section 7.7 hereof. If a completed request for withdrawal
with regard to shares of Common Stock credited to a Participant's Account
on which Dividends are being reinvested is received by the Administrator
on or after the record date relating to the Dividend Payment Date but
before the Investment Date, and (i) if the Participant's withdrawal
instructions cover less than all of the shares of Common Stock credited to
his Account, the withdrawal will be processed as described above in the
immediately preceding paragraph, the Dividends will be invested in Common
Stock through the Plan, and the newly purchased shares of Common Stock
credited to his Account or (ii) if the Participant's withdrawal
instructions cover all of the shares of Common Stock credited to his
Account, the withdrawal instructions will be processed and checks for the
Dividends and for the sale of any fractional shares will be provided.
Withdrawal of Account Shares shall not affect reinvestment of Dividends on
the shares withdrawn unless (i) the Participant is no longer the record
holder of such shares, (ii) such reinvestment is changed by the
Participant by delivering to the Administrator written instructions or an
Authorization Form to that effect pursuant to Section 7.1 hereof or
(iii) the Participant has terminated his participation in the Plan.
Other than transfers pursuant to Section 5.2 hereof, shares of Common
Stock credited to a Participant's Account may not be pledged or assigned.
Section 7.3. Right of Termination of Participation. If a Participant's
Request Form indicates the Participant's desire to terminate his
participation in the Plan, the Administrator shall treat such request as a
withdrawal of all of such Participant's whole Account Shares pursuant to
Section 7.2 hereof. The Administrator, in addition to mailing
certificates representing all whole Account Shares, if any, pursuant to
Section 7.2 hereof, shall mail by First Class Mail to the Participant at
his address of record checks for an amount equal to the sum of (i) the
amount of cash credited to such Participant's Account pending investment
in Common Stock and (ii) the cash value of any fractional shares of Common
Stock credited to his Account. Such fractional shares shall be valued at
the closing price on the NYSE for the trading day immediately preceding
the date of termination.
Section 7.4. Stock Splits, Stock Dividends and Rights Offerings. Any
shares or other securities representing stock splits or other noncash
distributions on Account Shares shall be credited to such Participant's
Account. Stock splits, combinations, recapitalizations and similar events
affecting the Common Stock shall, as to shares credited to Accounts of
Participants, be credited to such Accounts on a pro rata basis.
In the event of a rights offering, a Participant shall receive rights
based upon the total number of whole shares of Common Stock credited to
his Account.
Section 7.5. Shareholder Materials; Voting Rights. The Administrator
shall send or forward to each Participant all applicable proxy
solicitation materials, other shareholder materials or consent
solicitation materials. Participants shall have the exclusive right to
exercise all voting rights respecting Account Shares credited to their
respective Accounts. A Participant may vote the Account Shares credited
to their respective Account in person or by proxy. A Participant's proxy
card shall represent all Account Shares and shares of Common Stock of
which he is the record holder. Account Shares shall not be voted unless a
Participant or the proxy votes them.
Solicitation of the exercise of Participants' voting rights by the
management of the Corporation and others under a proxy or consent
provision applicable to all holders of Common Stock shall be permitted.
Solicitation of the exercise of Participants' tender or exchange offer
rights by management of the Corporation and others shall also be
permitted. The Administrator shall notify the Participants of each
occasion for the exercise of their voting rights or rights with respect to
a tender offer or exchange offer within a reasonable time before such
rights are to be exercised. Such notification shall include all
information distributed to the shareholders of the Corporation by the
Corporation regarding the exercise of such rights.
Section 7.6. Statements of Account. As soon as practicable after any
Account transaction or activity, the Administrator shall send to the
Participant a Statement of Account reflecting (i) current transactions
completed under the Plan, (ii) the number of Account Shares credited to
such Participant's Account at the date of such statement, (iii) the amount
of funds, if any credited to such Participant's Account pending investment
at the date of such statement and (iv) such additional information
regarding such Participant's Account as the Administrator may determine to
be pertinent to the Participant. As soon as practicable following a sale
of Account Shares by a Participant, the Administrator shall deliver a
confirmation to such Participant.
Section 7.7. Direct Deposit Option. A Participant may elect to have any
Dividends on Account Shares not being reinvested in Common Stock pursuant
to the Plan paid by electronic direct deposit to the Participant's
predesignated bank, savings or credit union account. To receive such
direct deposit of funds, a Participant must complete, sign and return a
Direct Deposit Authorization Form to the Administrator. Direct deposit
will become effective as soon as practicable after receipt of a completed
Direct Deposit Authorization Form. A Participant may change his
designated direct deposit account by delivering, written instructions or
a completed Direct Deposit Authorization Form to the Administrator.
ARTICLE VIII
Certificates and Fractional Shares
Section 8.1. Certificates. A Participant may, at any time or from time
to time, request in writing to receive a certificate for all or a portion
of his whole Account Shares and upon such request the Administrator shall
promptly mail such certificate (in any event, within ten business days of
the receipt of such written request) by First Class Mail to such
Participant at his address of record; provided, however, that upon the
mailing of such certificate the shares of Common Stock represented by such
certificate shall no longer be Account Shares but shall remain
reinvestment Eligible Securities (except to the extent such Participant
has elected not to have Dividends reinvested in Common Stock).
Section 8.2. Fractional Shares. Fractional shares of Common Stock shall
be credited to Accounts as provided in Article III hereof; provided,
however, that no certificate for fractional shares shall be distributed to
any Participant at any time; and provided, further, that the Corporation
shall issue and sell only whole shares of Common Stock to the
Administrator in respect of Dividends reinvested in, and purchases made by
the Administrator hereunder of, newly issued shares.
ARTICLE IX
Concerning the Plan
Section 9.1. Suspension, Modification and Termination. The Corporation
may at any time and from time to time, at its sole option, suspend,
modify, amend or terminate the Plan, in whole, in part or in respect of
Participants in one or more jurisdictions; provided, however, no such
amendment shall decrease the Account of any Participant or result in a
distribution to the Corporation of any amount credited to the Account of
any Participant. Upon complete termination of the Plan, the Accounts of
all Participants (or in the case of partial termination of the Plan, the
Accounts of all affected Participants) shall be treated as if each such
Participant had elected to terminate his participation in the Plan
pursuant to Section 7.3 hereof, except that any fraction of a share of
Common Stock shall be valued as of the trading date immediately preceding
the date on which the Plan is terminated. The Administrator shall
promptly send each affected Participant notice of such suspension,
modification or termination.
Section 9.2. Rules and Regulations. The Corporation may from time to
time adopt such administrative rules and regulations concerning the Plan
as it deems necessary or desirable for the administration of the Plan.
The Corporation shall have the power and authority to interpret the terms
and the provisions of the Plan and shall interpret and construe the Plan
and reconcile any inconsistency or supply any omitted detail in a manner
consistent with the general terms of the Plan and applicable law.
Section 9.3. Costs. All costs of administration of the Plan shall be
paid by the Corporation. The Participants will bear the cost of any
brokerage commissions, any related service charges and applicable taxes
incurred in connection with open market sales of shares of Common Stock
made under the Plan. The Corporation shall pay any brokerage commissions
and charges incurred in connection with any purchase of shares of Common
Stock made under the Plan. Any applicable taxes incurred in connection
with such open market purchase shall be borne by the Participants.
Section 9.4. Termination of a Participant. If a Participant does not
have at least one whole Account Share, the Participant's participation in
the Plan may be terminated by the Corporation, in its sole discretion,
upon written notice to such Participant by mail at his address of record.
Additionally, the Corporation, in its sole discretion, may terminate any
Participant's participation in the Plan after written notice mailed in
advance to such Participant at his address of record. Upon such
termination, the Account of such Participant shall be treated as if he had
elected to terminate his participation in the Plan pursuant to Section 7.3
hereof, except that any fraction of a share of Common Stock shall be
valued as of the trading date immediately preceding the date on which such
Participant's participation is terminated.
ARTICLE X
Administration of the Plan
Section 10.1. Selection of an Administrator. The Administrator shall be
appointed by the Corporation. The Administrator's appointment to serve as
such may be revoked by the Corporation at any time. The Administrator may
resign at any time upon reasonable notice to the Corporation. In the
event that no Administrator is appointed, the Corporation shall be deemed
to be the Administrator for purposes of the Plan. The Corporation is
presently the Administrator.
Section 10.2. Compensation. The officers of the Corporation shall make
such arrangements regarding compensation, reimbursement of expenses and
indemnification of the Administrator and any Independent Agent as they
from time to time deem reasonable and appropriate.
Section 10.3. Authority and Duties of Administrator. The Administrator
shall have the authority to undertake any act necessary to fulfill its
duties as set forth in the various provisions of the Plan. Upon receipt,
the Administrator shall deposit all Dividends, optional and initial
Investments in a segregated bank account. The Administrator shall
maintain appropriate records of the Accounts of Participants.
Section 10.4. Liability of the Corporation, the Administrator and Any
Independent Agent. The Corporation, the Administrator and any Independent
Agent shall not be liable for any act done in good faith, or for the good
faith omission to act in administering or performing their duties with
respect to the Plan, including, without limitation, any claim of liability
arising out of failure to terminate a Participant's Account upon such
Participant's death prior to receipt of notice in writing of such death,
or with respect to the prices at which shares are purchased or sold for a
Participant's Account and the times when such purchases and sales are
made, or with respect to any loss or fluctuation in the market value after
the purchase or sale of such shares.
Section 10.5. Records and Reports. The Administrator shall keep
appropriate records concerning the Plan, Accounts of Participants,
purchases and sales of Common Stock made under the Plan and Participants'
addresses of record and shall send Statements of Account and confirmations
to each Participant in accordance with the provisions of Section 7.6
hereof.
Section 10.6. Selection of Independent Agent. Any Independent Agent
serving in such capacity pursuant to the Plan shall be selected by the
Corporation, and the Administrator and the Corporation, or either of them,
shall, subject to the provisions of Section 3.3 hereof, make such
arrangements and enter into such agreements with the Independent Agent in
connection with the activities contemplated by the Plan as the
Administrator and the Corporation, or either of them, deem reasonable and
appropriate.
Section 10.7. Source of Shares of Common Stock. The Corporation shall
not change the source of shares of Common Stock purchased by Participants
in the Plan (i.e., either (i) newly issued shares of Common Stock or
(ii) shares of Common Stock purchased in the open market) more than one
time in any 3-month period. Any such exercise of its right to change the
source of shares must be based on a recorded determination by the
Corporation's Board of Directors or Chief Financial Officer that the
Corporation's need to raise capital has changed, or there is another valid
reason for such a change in the capital structure of the Corporation or of
one if its major subsidiaries.
ARTICLE XI
Plan Account
Section 11.1. Creation of the Plan Account. The Corporation shall
establish a non-interest bearing segregated account at a commercial bank
organized under the laws of the United States or any state, which
commercial bank must have assets in excess of $500,000,000.
Section 11.2. Requirements of the Plan Account. The Plan account must be
held for the benefit of the Participants, and cannot be subject to any
liens, any creditor claims, or any other claims against the Corporation.
Furthermore, the Plan account cannot be subject to bankruptcy proceedings
if the Corporation files for bankruptcy under federal or state law. All
Dividends, optional Investments and initial Investments shall be promptly
transmitted (ie by the opening of business on the next business day if the
funds are received before noon, and by noon of the next business day if
the funds are received after noon) by the Administrator in that certain
non-interest bearing account (together with all Dividends, optional
Investments and initial Investments deposited therein from time to time).
ARTICLE XII
Miscellaneous Provisions
Section 12.1. Controlling Law. This Plan shall be construed, regulated
and administered under the laws of the State of Michigan.
Section 12.2. Acceptance of Terms and Conditions of Plan by Participants.
Each Participant, by completing an Authorization Form and as a condition
of participation herein, for himself, his heirs, executors,
administrators, legal representatives and assigns, approves and agrees to
be bound by the provisions of this Plan and any subsequent amendments
hereto, and all actions of the Corporation and the Administrator
hereunder.
EX-5
3
OPINION OF DENISE M STURDY
EXHIBIT (5)
Exhibit (5)
Facsimile -- (517) 788-0768 Denise M Sturdy
Writer's Direct Dial Number -- (517) 788-0179 Assistant General Counsel
September 12, 1995
CMS Energy Corporation
Fairlane Plaza South, Suite 1100
330 Town Center Drive
Dearborn, MI 48126
RE: CMS Energy Corporation - Shareholder
Stock Purchase Plan - Registration
Statement Form S-3 (No. 33-__________)
Ladies and Gentlemen:
I am the Assistant General Counsel of CMS Energy
Corporation, a Michigan corporation ("CMS Energy" or the "Company"). I
refer to the Registration Statement on Form S-3 (the "Registration
Statement") being filed by the Company with the Securities and Exchange
Commission under the Securities Act of 1933, as amended (the "Securities
Act"), relating to the registration of 4,519,106 shares of Common Stock,
par value $.01 per share, and 5,000,000 shares of Class G Common Stock, no
par value per share, of the Company (collectively, the "Common Stock").
I am familiar with the proceedings to date with respect to
the proposed issuance and sale of the Common Stock and have examined such
records, documents and questions of law, and satisfied myself as to such
matters of fact, as I have considered relevant and necessary as a basis
for this opinion.
Based on the foregoing, I am of the opinion that:
1. The Company is duly incorporated and validly
existing in good standing under the laws of the State of Michigan.
2. The Common Stock will be legally issued, fully
paid and non-assessable when (i) the Registration Statement, as finally
amended, shall have become effective under the Securities Act; (ii) the
Company's Board of Directors or a duly authorized committee thereof shall
have duly adopted final resolutions authorizing the issuance and sale of
the Common Stock as contemplated by the Registration Statement; and (iii)
certificates representing the Common Stock shall have been duly executed,
countersigned and registered, and duly delivered to the purchaser thereof
against payment of the agreed consideration therefor.
I do not find it necessary for the purposes of this opinion
to cover, and accordingly, I express no opinion as to the application of,
the securities or blue sky laws of the various states to the sale of the
Common Stock.
I am a member of the bar of the State of Michigan and I
express no opinion as to the law of any jurisdiction other than the State
of Michigan and, to the extent pertinent, the federal law of the United
States of America.
I hereby consent to the filing of this opinion as an
Exhibit to the Registration Statement and to the reference to me included
in or made a part of the Registration Statement.
Very truly yours,
/s/ Denise M. Sturdy, Esq.
EX-15
4
LETTER FROM ARTHUR ANDERSEN LLP
EXHIBIT (15)
Exhibit (15)
ARTHUR ANDERSEN LLP
To CMS Energy Corporation:
We are aware that CMS Energy Corporation has incorporated by
reference in this registration statement its Form 10-Q for the quarter
ended March 31, 1995 and its Form 10-Q for the quarter ended June 30,
1995, which include our reports dated May 8, 1995 and August 9, 1995,
respectively, covering the unaudited interim financial information
contained therein. Pursuant to Regulation C of the Securities Act of
1933, that report is not considered a part of the registration statement
prepared or certified by our Firm or a report prepared or certified by our
Firm within the meaning of Sections 7 and 11 of the Act.
/s/ Arthur Andersen LLP
Detroit, Michigan
September 6, 1995
EX-23
5
EX-23(B) CONSENT OF ARTHUR ANDERSEN LLP
EXHIBIT (23)(b)
EXHIBIT NO. 23(b)
ARTHUR ANDERSEN LLP
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this registration statement of our reports dated
January 31, 1995 (except with respect to certain matters discussed in
Notes 2, 3, 7 and 13 to the consolidated financial statements as to which
the date is March 1, 1995) included or incorporated by reference in
CMS Energy Corporation's Form 10-K for the year ended December 31, 1994,
and to all references to our Firm included in this registration statement.
ARTHUR ANDERSEN LLP
Detroit, Michigan,
September 6, 1995
EX-24
6
POWER OF ATTORNEY AND BOARD RESOLUTION
EXHIBIT (24)
Exhibit (24)
July 28, 1995
Mr. Alan M. Wright and
Mr. Thomas A. McNish
CMS Energy Corporation
Fairlane Plaza South, Suite 1100
330 Town Center Drive
Dearborn, MI 48126
We hereby appoint each of you lawful attorney for each of us and in each
of our names to sign and cause to be filed with the Securities and
Exchange Commission registration statement(s) and/or any amendment(s)
thereto for purposes, among other things, of offering Common Stock and
Class G Common Stock of CMS Energy Corporation through a Dividend
Reinvestment and Common Stock Purchase Plan, the Performance Incentive
Stock Plan of CMS Energy Corporation, and the Employees' Savings and
Incentive Plan of Consumers Power Company.
Yours very truly,
/s/ William T. McCormick, Jr. /s/ Frank H. Merlotti
----------------------------------- ------------------------------
William T. McCormick, Jr. Frank H. Merlotti
/s/ James J. Duderstadt /s/ W. U. Parfet
----------------------------------- ------------------------------
James J. Duderstadt William U. Parfet
/s/ K. R. Flaherty /s/ Percy A. Pierre
----------------------------------- ------------------------------
Kathleen R. Flaherty Percy A. Pierre
/s/ S. Kinnie Smith, Jr.
----------------------------------- ------------------------------
Victor J. Fryling S. Kinnie Smith, Jr.
/s/ Earl D. Holton /s/ K. Whipple
----------------------------------- ------------------------------
Earl D. Holton Kenneth Whipple
/s/ Lois A. Lund /s/ John B. Yasinsky
----------------------------------- ------------------------------
Lois A. Lund John B. Yasinsky
Exhibit (24)
Extract from minutes of a meeting of the Board of Directors of CMS Energy
Corporation (the "Corporation") held on July 28, 1995.
- - - - - - - - - -
Amendments to the
Dividend Reinvestment and Common Stock
Purchase Plan
At a meeting of the Board of Directors of the Corporation
held on April 29, 1994, resolutions were adopted with respect to proposed
amendments to the Dividend Reinvestment and Common Stock Purchase Plan
(the "Plan") and authority to register additional shares of Common Stock
of the Corporation with the Securities and Exchange Commission.
Management of the Corporation recommended that such resolutions be
rescinded since they were not utilized and are inappropriate at this time,
and that new resolutions be adopted in order to amend the Plan to allow
for the distribution and/or sale of additional shares of all classes of
Common Stock of the Corporation and providing more flexibility in the
Plan. Management proposed that certain restrictions in the Plan be
removed, such as, broadening the category of eligible participants and
other similar revisions as contemplated by the SEC Release Nos. 33-7114
and 34-3501 dated December 1, 1994 regarding exemptions from Rule 10b-
6 for certain Dividend Reinvestment Plans. The Plan should be amended and
a registration statement or an amendment to the existing registration be
filed with the Securities and Exchange Commission. Such registration
statement will register not more than 5,000,000 additional shares of
Common Stock, $.01 par value and not more than 5,000,000 shares of
Class G Common Stock, no par value, to be issued pursuant to the
provisions of the Plan, the prices of which would be determined by the
terms of the Plan. The matter was discussed fully.
Upon motion duly made and seconded, the following resolution
was thereupon unanimously adopted:
RESOLVED: That resolutions adopted at a
meeting of the Board of Directors held on April 29, 1994
with respect to proposed amendments to the Dividend
Reinvestment and Common Stock Purchase Plan and authority to
register additional shares of Common Stock of the
Corporation with the Securities and Exchange Commission are
hereby rescinded.
Upon motion duly made and seconded, the following resolution
was unanimously adopted:
RESOLVED FURTHER: That the officers of the
Corporation, and each of them, are authorized and directed,
for and on behalf of the Corporation, to amend the
Corporation's Dividend Reinvestment and Common Stock
Purchase Plan, as discussed at the meeting, and without
further action of the Board.
Upon motion duly made and seconded, the following
resolutions were unanimously adopted:
RESOLVED FURTHER: That the Board hereby
approves and authorizes the issue and sale of not more than
5,000,000 additional shares of Common Stock $.01 par value,
and not more than 5,000,000 additional shares of Class G
Common Stock, no par value, of the Corporation, from time to
time, for purposes of the Dividend Reinvestment and Common
Stock Purchase Plan, as the officers of the Corporation deem
appropriate and as counsel may advise; and
RESOLVED FURTHER: That the officers of the
Corporation, and each of them, are authorized, in their
discretion, on its behalf, to execute and file with the
Securities and Exchange Commission a registration statement,
or an amendment to the existing registration statement, with
respect to the sale of not more than 5,000,000 additional
shares of Common Stock, $.01 par value, and not more than
5,000,000, shares of Class G Common Stock, no par value, of
the Corporation under the Dividend Reinvestment and Common
Stock Purchase Plan, and to do all other things necessary to
make such registration effective, including the execution
and filing of any necessary or appropriate amendments; and
RESOLVED FURTHER: That it is desirable and in
the best interest of the Corporation that its securities be
qualified or registered for sale in various jurisdictions;
that the officers of the Corporation, and each of them, are
authorized to determine the jurisdictions in which
appropriate action shall be taken to qualify or register for
sale all or such part of the securities of the Corporation
as said officers may deem advisable and to maintain such
qualifications or registrations; that said officers are
authorized to preform on behalf of the Corporation any and
all such acts as they may deem necessary or advisable in
order to comply with the applicable laws of any such
jurisdiction including, but without limitation the
qualifications or registrations of the Corporation as a
broker, dealer, or broker-dealer under the securities or
blue sky laws of any jurisdiction, and in connection
therewith to execute and file all requisite papers and
documents, including, but not limited to, applications,
reports, surety bonds, irrevocable consents and appointments
of attorneys for service of process; and the execution by
such officers of any such paper or document or the doing by
them of any act in connection with the foregoing matters
shall conclusively establish their authority therefor from
the Corporation and the approval and ratification by the
Corporation of the papers and documents executed and the
action taken; and
RESOLVED FURTHER: That the officers of the Corporation, and
each of them, are authorized to cause the Corporation to make
application to the New York Stock Exchange for the listing on such
Exchange, upon notice of issuance, of not more than 5,000,000
additional shares of Common Stock, $.01 par value, and not more
than 5,000,000 shares of Class G Common Stock, no par value, of the
Corporation; that Messrs. Alan M. Wright and Thomas A. McNish are,
and each of them is, designated to represent the Corporation in
connection with any application or applications for listing and to
appear on behalf of the Corporation before such official or body of
said Exchange as may be appropriate, with authority to make such
changes, upon the advice of counsel, in said application(s) or in
any agreements or other papers relating thereto as may be necessary
or appropriate to conform with the requirements for listing; and
RESOLVED FURTHER: That the officers of the Corporation, and
each of them, are authorized to have issued and to deliver, at one
time or from time to time, certificates representing not more than
5,000,000 shares of the Common Stock, $.01 par value, and not more
than 5,000,000 shares of Class G Common Stock, no par value, of the
Corporation; and
RESOLVED FURTHER: That the officers of the Corporation, and
each of them, are authorized and empowered, in the name and on
behalf of the Corporation, to sign, seal and deliver such
documents, papers and instruments, and to do or cause to be done
all acts and things which any of them may consider necessary or
advisable to carry out the intent and purposes of all the foregoing
resolutions with respect to the issue and sale of not more than
5,000,000 shares of Common Stock, $.01 par value, and not more than
5,000,000 shares of Class G Common Stock, no par value, of the
Corporation.
- - - - - - - - - -
I, Thomas A. McNish, Secretary of CMS Energy Corporation, do hereby
certify that the foregoing is a true and correct copy of resolutions duly
and regularly adopted at a meeting of the Board of Directors of CMS Energy
Corporation duly called and held on July 28, 1995 at which a quorum was in
attendance and voting throughout and that said resolutions have not since
been rescinded but are still in full force and effect.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the
seal of the Corporation this 1st day of August, 1995.
/s/ Thomas A. McNish
Thomas A. McNish
Secretary
( S E A L )