-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NCFGU6ThP3k1YpvgdalYD11MWvwQsztHo94Y1Z5fVxS5lVOayF2zn2ASyDkKmjA5 2ByY+GqaloaLnWzeDduXQQ== 0000950124-98-000101.txt : 19980109 0000950124-98-000101.hdr.sgml : 19980109 ACCESSION NUMBER: 0000950124-98-000101 CONFORMED SUBMISSION TYPE: S-3MEF PUBLIC DOCUMENT COUNT: 4 333-41395 FILED AS OF DATE: 19980108 EFFECTIVENESS DATE: 19980108 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-3MEF SEC ACT: SEC FILE NUMBER: 333-43897 FILM NUMBER: 98503031 BUSINESS ADDRESS: STREET 1: FAIRLANE PLZ SOUTH STE 1100 STREET 2: 330 TOWN CENTER DR CITY: DEARBORN STATE: MI ZIP: 48126 BUSINESS PHONE: 3134369200 MAIL ADDRESS: STREET 1: FAIRLANE PLAZA SOUTH, SUITE 1100 STREET 2: 330 TOWN CENTER DRIVE CITY: DEARBORN STATE: MI ZIP: 48126 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CMS ENERGY X TRAS PASS THROUGH TRUST I CENTRAL INDEX KEY: 0001050565 STANDARD INDUSTRIAL CLASSIFICATION: [] IRS NUMBER: 383382222 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-3MEF SEC ACT: SEC FILE NUMBER: 333-43897-01 FILM NUMBER: 98503032 BUSINESS ADDRESS: STREET 1: 330 TOWN CENTER DR STREET 2: FAIRLANE PLAZA SOUTH STE 1100 CITY: DEARBORN STATE: MI ZIP: 48126 BUSINESS PHONE: 3134369200 MAIL ADDRESS: STREET 1: 330 TOWN CENTER DR STREET 2: FAIRLANE PLAZA SOUTH STE 1100 CITY: DEARBORN STATE: MI ZIP: 48126 S-3MEF 1 S-3MEF 1 As filed with the Securities and Exchange Commission on January 8, 1997 Registration No. 333- SECURITIES AND EXCHANGE COMMISSION ================================================================================ WASHINGTON, D.C. 20549 --------------- FORM S-3 AND FORM S-1 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 --------------- CMS ENERGY CORPORATION CMS ENERGY X-TRAS SM PASS-THROUGH TRUST I (Exact name of registrant (Exact name of registrant as specified in its charter) as specified in its charter) Michigan Delaware (State or other jurisdiction of (State or other jurisdiction of incorporation or organization) incorporation or organization) 38-2726431 38-3382222 (I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.) Fairlane Plaza South, Suite 1100 c/o Wilmington Trust Company 330 Town Center Drive Rodney Square North Dearborn, Michigan 48126 1100 North Market Street (313) 436-9200 Wilmington, DE 19890-0001 (Address, including zip code, and telephone number, (302) 651-1000 including area code, of registrant's (Address, including zip code, and telephone number, principal executive offices) including area code, of registrant's principal executive offices)
------------------- Alan M. Wright Senior Vice President, Chief Financial Officer and Treasurer Fairlane Plaza South, Suite 1100 330 Town Center Drive Dearborn, Michigan 48126 (313) 436-9200 (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: Michael D. VanHemert, Esq. Joel S. Klaperman, Esq. CMS Energy Corporation Shearman & Sterling Fairlane Plaza South 599 Lexington Avenue 330 Town Center Drive, Suite 1100 New York, New York 10022 Dearborn, Michigan 48126 (212) 848-4000 (313) 436-9602 ------------------- 2 Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of this 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: / / 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. /X/ Registration Nos. 333-41395 and 333-41395-01 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 securities to be to be maximum offering maximum aggregate registration registered registered price per security (1) offering price(1) fee - ------------------------------------------------------------------------------------------------------------------------------------ Pass-Through Certificates due 2005 $30,000,000 100% $30,000,000 $8,850.00 __ % Extendible Tenor Rate- Adjusted Securities due 2005(2) $30,000,000 N/A N/A N/A Total $30,000,000 100% $30,000,000 $8,850.00 - ------------------------------------------------------------------------------------------------------------------------------------
(1) Estimated solely for the purpose of calculating the registration fee. (2) The ___% Extendible Tenor Rate-Adjusted Securities due 2005 will be purchased by CMS Energy X-TRAS(SM) Pass-Through Trust I with the proceeds of the sale of the Pass-Through Certificates. This Registration Statement shall become effective upon filing with the Commission in accordance with Rule 462(b) under the Securities Act of 1933. ================================================================================ 3 INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE PURSUANT TO GENERAL INSTRUCTION IV OF FORM S-3 In accordance with the provisions of General Instruction IV of Form S-3 and General Instruction V of Form S-1, CMS Energy Corporation ("CMS Energy") and CMS Energy X-TRAS(SM) Pass-Through Trust I (the "Trust") hereby incorporate by reference the contents of Amendment No. 1 to CMS Energy's and the Trust's Registration Statement on Form S-3 and Form S-1 (Registration Nos. 333-41395 and 333-41395-01) filed with the Securities and Exchange Commission on December 23, 1997 (the "Original Registration Statement"), which Original Registration Statement was declared effective on January 6, 1998. PART II. INFORMATION NOT REQUIRED IN PROSPECTUS All Exhibits filed with the Original Registration Statement are incorporated by reference into, and shall be deemed part of, this Registration Statement, except the following, which are filed herewith:
EXHIBIT NO. DESCRIPTION - ----------- ----------- (5) - Opinion of Richard, Layton & Finger regarding the legality of the Certificates. (15) - Letter regarding unaudited interim financial information. (23)(a) - Consent of Richards, Layton & Finger (included in Exhibit (5) above). (23)(b) - Consent of Arthur Andersen LLP.
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. 4 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 the 8th day of January, 1998. 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 their respective capacities as officers and/or directors of CMS Energy Corporation and on the dates indicated.
Name Title Date ---- ----- ---- (i) Principal executive officer Chairman of the Board, January 8, 1998 /s/ William T. McCormick, Jr. Chief Executive Officer - --------------------------------- and Director (William T. McCormick, Jr.) (ii) Principal financial officer: Senior Vice President, January 8, 1998 /s/ A.M. Wright Chief Financial Officer - --------------------------------------- and Treasurer (Alan M. Wright) (iii) Controller or principal accounting officer: Senior Vice President, Controller January 8, 1998 /s/ P.D. Hopper and Chief Accounting Officer - ------------------------------- (Preston D. Hopper)
5 * January 8, 1998 - ------------------------- (John M. Deutch) Director * January 8, 1998 - ------------------------- (James J. Duderstadt) Director - ------------------------- (Kathleen R. Flaherty Director * January 8, 1998 - ------------------------- (Victor J. Fryling) Director * January 8, 1998 - ------------------------- (Earl D. Holton) Director * January 8, 1998 - ------------------------- (William U. Parfet) Director - ------------------------- (Percy A. Pierre) Director * January 8, 1998 - ------------------------- (Kenneth Whipple) Director * January 8, 1998 - ------------------------- (John B. Yasinsky) Director *By /s/ A.M. Wright --------------------- (Alan M. Wright) Attorney-in-fact
6 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, CMS Energy X-TRAS(SM) Pass-Through Trust I has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dearborn, State of Michigan, on the 8th day of January, 1998. CMS Energy X-TRAS(SM) Pass-Through Trust I By /s/ A.M. Wright ----------------------- Alan M. Wright Senior Vice President, Chief Financial Officer and Treasurer 7 ============================================================================ ============================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ________________ FORM S-3 AND FORM S-1 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 CMS ENERGY CORPORATION CMS ENERGY X-TRAS(SM) PASS-THROUGH TRUST I EXHIBITS ============================================================================ ============================================================================ 8 EXHIBIT INDEX EXHIBIT NO. DESCRIPTION (5) - Opinion of Richard, Layton & Finger regarding the legality of the Certificates. (15) - Letter regarding unaudited interim financial information. (23)(a) - Consent of Richards, Layton & Finger (included in Exhibit (5) above). (23)(b) - Consent of Arthur Andersen LLP.
EX-5 2 EXHIBIT 5 1 EXHIBIT 5 [RICHARDS, LAYTON & FINGER LETTERHEAD] January 8, 1998 CMS Energy X-TRAS Pass-Through Trust I c/o CMS Energy Corporation Fairlane Plaza South 330 Town Center Drive, Suite 1100 Dearborn, Michigan 48126 RE: CMS Energy X-TRAS Pass-Through Trust I Ladies and Gentlemen: We have acted as special Delaware counsel for CMS Energy Corporation, a Michigan corporation (the "Company"), and CMS Energy X-TRAS Pass-Through Trust I, a Delaware business trust (the "Trust"), in connection with the matters set forth herein. At your request, this opinion is being furnished to you. For purposes of giving the opinions hereinafter set forth, our examination of documents has been limited to the examination of originals or copies of the following: (a) The Certificate of Trust of the Trust (the "Certificate of Trust") as filed in the office of the Secretary of State of the State of Delaware (the "Secretary of State") on November 21, 1997; (b) The Declaration of Trust of the Trust, dated as of November 21, 1997, among the Company, as Sponsor, and the trustees of the Trust named therein; (c) The Registration Statement (the "Registration Statement") on Form S-3, including a preliminary prospectus and preliminary prospectus supplement (the "Prospectus") relating to the Pass-Through Certificates of the Trust representing preferred undivided beneficial interests in the assets of the Trust (each, a "Pass-Through Certificate" and collectively, the Pass-Through Certificates"), as proposed to be filed by the Company, the Trust and others as set forth therein with the Securities and Exchange Commission on or about December 1, 1997; (d) A form of Amended and Restated Declaration of Trust of the Trust, to be entered into among the Company, as Sponsor, the trustees of the Trust named therein, and the holders, from time to time, of undivided beneficial interests in the assets of the Trust (including Annex A and Exhibit A-1 and A-2 thereto) (the "Declaration"), attached as an exhibit to the Registration Statement; and (e) A certificate of Good Standing for the Trust, dated November 1, 1997, obtained from the Secretary of State. Initially capitalized terms used herein and not otherwise defined are used as defined in the 2 Page 2 Declaration. For purposes of this opinion, we have not reviewed any documents other than the documents listed in paragraphs (a) through (e) above. In particular, we have not reviewed any document (other than the documents incorporated by reference into the documents reviewed by us. We have assumed that there exists no provision in any document that we have not reviewed that is inconsistent with the opinions stated herein. We have conducted no independent factual investigation of our own but rather have relied solely upon the foregoing documents, the statements and information set forth therein and the additional matters recited or assumed herein, all of which we have assumed to be true, complete and accurate in all material respects. With respect to all documents examined by us, we have assumed (i) the authenticity of all documents submitted to us as authentic originals, (ii) the conformity with the originals of all documents submitted to us as copies or forms, and (iii) the genuineness of all signatures. For purposes of this opinion, we have assumed (i) that the Declaration and the Certificate of Trust are in full force and effect and have not been amended, (ii) except to the extent provided in paragraph 1 below, the due creation or due organization or due formation, as the case may be, and valid existence in good standing of each party to the documents examined by us under the laws of the jurisdiction governing its creation, organization or formation, (iii) the legal capacity of natural persons who are parties to the documents examined by us, (iv) that each of the parties to the documents examined by us has the power and authority to execute and deliver, and to perform its obligations under, such documents, (v) the due authorization, execution and delivery by all parties thereto of all documents examined by us, (vi) the receipt by each Person to whom a Pass-Through Certificate is to be issued by the Trust (collectively, the "Pass-Through Certificate Holders") of a Pass-Through Certificate and the payment for the Pass-Through Certificate acquired by it, in accordance with the Declaration and the Registration Statement, and (vi) that the Pass-Through Certificates are issued and sold to the Pass-Through Certificate Holders in accordance with the Declaration and the Registration Statement. We have not participated in the preparation of the Registration Statement and assume no responsibility for its contents. This opinion is limited to the laws of the State of Delaware (excluding the securities laws of the State of Delaware), and we have not considered and express no opinion on the laws of any other jurisdiction, including federal laws and rules and regulations relating thereto. Our opinions are rendered only with respect to Delaware laws and rules, regulations and orders thereunder which are currently in effect. Based upon the foregoing, and upon our examination of such questions of law and statutes of the State of Delaware as we have considered necessary or appropriate, and subject to the assumptions, qualifications, limitations and exceptions set forth herein, we are of the opinion that: 1. The Trust has been duly created and is validly existing in good standing as a business trust under the Delaware Business Trust Act. 2. The Pass-Through Certificates will represent valid and, subject to the qualifications set forth in paragraph 3 below, fully paid and nonassessable undivided beneficial interests in the assets of the Trust. 3. The Pass-Through Certificate Holders, as beneficial owners of the Trust, will be entitled to the same limitation of personal liability extended to stockholders of private corporations for profit organized under the General Corporation Law of the State of Delaware. We note that the Pass-Through Certificate Holders may be obligated to make payments as set forth in the Declaration. We consent to the filing of this opinion with the Securities and Exchange Commission as an exhibit to the Registration Statement. In addition, we hereby consent to the use of our name under the heading "Validity of the Certificates" in the Prospectus. In giving the foregoing consents, we do not thereby admit that 3 January 8, 1988 Page 3 we come within the category of Persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission thereunder. Except as stated above, without our prior written consent, this opinion may not be furnished or quoted to, or relied upon by, any other Person for any purpose. Very truly yours, /s/ Richards, Layton & Finger EX-15 3 EXHIBIT 15 1 [ARTHUR ANDERSEN LLP LETTERHEAD] EXHIBIT (15) 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, 1997, its Form 10-Q for the quarter ended June 30, 1997, and its Form 10-Q for the quarter ended September 30, 1997, which include our reports dated May 9, 1997, August 11, 1997, and November 10, 1997, respectively, covering the unaudited interim financial information contained therein. Pursuant to Regulation C of the Securities Act of 1933, this 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, January 8, 1998. EX-23.(B) 4 EXHIBIT 23.(B) 1 [ARTHUR ANDERSEN LLP LETTERHEAD] EXHIBIT (23)(b) 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 24, 1997 included or incorporated by reference in CMS Energy Corporation's Form 10-K for the year ended December 31, 1996, and to all references to our Firm included in this registration statement. /s/ Arthur Andersen LLP ----------------------- Detroit, Michigan, January 8, 1998 -----END PRIVACY-ENHANCED MESSAGE-----