8-K

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF

THE SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported) October 2, 2018

Commission File Number	Registrant; State of Incorporation; Address; and Telephone Number	IRS Employer Identification No.
1-9513	CMS ENERGY CORPORATION (A Michigan Corporation) One Energy Plaza Jackson, Michigan 49201 (517) 788-0550	38-2726431

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).  Emerging growth company:  o

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.    o

Item 8.01. Other Events.

On October 2, 2018, CMS Energy Corporation (“CMS Energy”) issued and sold $30,000,000 aggregate principal amount of its 5.875% Junior Subordinated Notes due 2078 (the “Notes”), pursuant to a Registration Statement on Form S-3 that CMS Energy filed with the Securities and Exchange Commission utilizing a “shelf” registration process (No. 333-216355) (the “Registration Statement”), a Preliminary Prospectus Supplement dated September 20, 2018 to the Prospectus dated March 1, 2017, an Issuer Free Writing Prospectus that included the final terms of the transaction, a Final Prospectus Supplement dated September 20, 2018 to the Prospectus dated March 1, 2017 and an underwriting agreement among CMS Energy and the underwriters named in that agreement with respect to the Notes.  The Notes are being sold pursuant to the over-allotment option contained in the Underwriting Agreement, dated September 20, 2018, by and between CMS Energy and the underwriters named therein. CMS Energy intends to use the net proceeds to redeem a portion of its 6.25% Senior Notes due February 1, 2020, of which $300,000,000 aggregate principal amount is outstanding, and for general corporate purposes.

This Current Report on Form 8-K is being filed to file certain documents in connection with the offering as exhibits to the Registration Statement.

Item 9.01. Financial Statements and Exhibits.

(d) Exhibits.

5.1 Opinion of Melissa M. Gleespen, Esq., Vice President, Corporate Secretary and Chief Compliance Officer of CMS Energy, dated October 2, 2018, regarding the legality of the Notes.

8.1 Opinion and Consent of Sidley Austin LLP regarding tax matters.

23.1 Consent of Melissa M. Gleespen, Esq. (included in Exhibit 5.1).

23.2 Consent of Sidley Austin LLP (included in Exhibit 8.1).

99.1 Information relating to Item 14 of the Registration Statement on Form S-3 (No. 333-216355).

This Form 8-K contains “forward-looking statements” as defined in Rule 3b-6 of the Securities Exchange Act of 1934, Rule 175 of the Securities Act of 1933, and relevant legal decisions. The forward-looking statements are subject to risks and uncertainties. All forward-looking statements should be considered in the context of the risk and other factors detailed from time to time in CMS Energy’s Securities and Exchange Commission filings. Forward-looking statements should be read in conjunction with “FORWARD-LOOKING STATEMENTS AND INFORMATION” and “RISK FACTORS” sections of CMS Energy’s Form 10-K for the Year Ended December 31, 2017 and as updated in reports CMS Energy files with the Securities and Exchange Commission. CMS Energy’s “FORWARD-LOOKING STATEMENTS AND INFORMATION” and “RISK FACTORS” sections are incorporated herein by reference and discuss important factors that could cause CMS Energy’s results to differ materially from those anticipated in such statements.

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

	CMS ENERGY CORPORATION
Dated: October 2, 2018	By:	/s/ Rejji P. Hayes
	Rejji P. Hayes
	Executive Vice President and
	Chief Financial Officer

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EX-5.1

EXHIBIT 5.1

Melissa M. Gleespen

Vice President, Corporate Secretary and Chief Compliance Officer

October 2, 2018

CMS Energy Corporation

One Energy Plaza

Jackson, MI 49201

RE:	CMS Energy Corporation
	$30,000,000 5.875% Junior Subordinated Notes due 2078 (the “Securities”)

Ladies and Gentlemen:

I am the Vice President, Corporate Secretary and Chief Compliance Officer of CMS Energy Corporation, a Michigan corporation (the “Company”).  I address this opinion to you with respect to the issuance and sale of $30,000,000 aggregate principal amount of the Company’s Securities, issued under the Indenture dated as of June 1, 1997 between the Company and The Bank of New York Mellon, as Trustee (the “Trustee”), as amended and supplemented by certain supplemental indentures thereto including the Seventh Supplemental Indenture dated as of September 26, 2018 relating to the Securities.  The Company issued and sold the Securities pursuant to an effective shelf Registration Statement on Form S-3 (No 333-216355) (the “Registration Statement”), a Preliminary Prospectus Supplement dated September 20, 2018 to a Prospectus dated March 1, 2017, an Issuer Free Writing Prospectus that included the final terms of the transaction and a Final Prospectus Supplement dated September 20, 2018 to a Prospectus dated March 1, 2017.  The Securities are being sold pursuant to the over-allotment option contained in the Underwriting Agreement, dated September 20, 2018, by and between the Company and the underwriters named therein.

In rendering the opinions expressed below, I, or attorneys acting under my supervision, have examined originals, or copies of originals certified to my satisfaction, of such agreements, documents, certificates and other statements of governmental officials and corporate officers and such other papers and evidence, as I have deemed relevant and necessary as a basis for such opinions.  I have assumed the authenticity of all documents submitted to me as originals, the genuineness of all signatures, and the legal capacity of all natural persons and the conformity with the original documents of any copies thereof submitted to me for examination.  I have further assumed without investigation that each document submitted to me for review and relied upon for this opinion is accurate and complete as of the date given to the date hereof.

One Energy Plaza · Jackson, MI 49201-2357 · Tel 517 788 2158 · Fax 517 788 2543

On the basis of such review, I am of the opinion that the Securities have been legally issued by the Company and constitute the valid and binding obligations of the Company, subject to bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer, fraudulent conveyance and other laws of general applicability affecting creditors’ rights generally or by general principles of equity (regardless of whether considered in a proceeding at law or in equity).

I hereby consent to the filing of this opinion as an exhibit to the Company’s Current Report on Form 8-K filed on October 2, 2018 which is incorporated by reference in the Registration Statement.

Very truly yours,

/s/ Melissa M. Gleespen

Melissa M. Gleespen

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EX-8.1

Exhibit 8.1

	SIDLEY AUSTIN LLP 787 SEVENTH AVENUE NEW YORK, NY 10019 +1 212 839 5300 +1 212 839 5599 FAX
	AMERICA  ·  ASIA PACIFIC  ·  EUROPE

October 2, 2018

CMS Energy Corporation
One Energy Plaza
Jackson, MI 49201

Re:CMS Energy Corporation 5.875% Junior Subordinated Notes due 2078

Ladies and Gentlemen:

We have acted as special counsel to CMS Energy Corporation, a Michigan corporation (the “Company”), in connection with the offering and sale of $30 million aggregate principal amount of 5.875% Junior Subordinated Notes due 2078 (the “Notes”) of the Company pursuant to the Company’s preliminary prospectus supplement, dated September 20, 2018, specifically relating to the Notes (the “Preliminary Prospectus Supplement”) and the Company’s prospectus supplement, dated September 20, 2018, specifically relating to the Notes (the “Prospectus Supplement”). The Notes are being sold pursuant to the over-allotment option contained in the Underwriting Agreement, dated September 20, 2018, among the underwriters named therein and the Company. The Notes are being issued under the Indenture, dated as of June 1, 1997, between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee, as supplemented and amended by various supplemental indentures and as supplemented by the Seventh Supplemental Indenture, dated as of September 26, 2018, establishing the Notes as a series of securities thereunder (as supplemented, the “Indenture”). You have requested our opinion as to certain United States federal income tax matters relating to the Notes.

In rendering the opinion expressed below, we have made such legal and factual examinations and inquiries as we have deemed necessary or advisable for the purpose of rendering this opinion letter, including but not limited to the examination of the following: (i) the Preliminary Prospectus Supplement and the Prospectus Supplement, (ii) the Indenture and (iii) such other documents as we have deemed necessary or appropriate as a basis for the opinion set forth below.

As to any facts material to the opinion expressed herein, we have relied upon certificates and statements and representations and warranties of the officers and other representatives and

Sidley Austin (NY) LLP is a Delaware limited liability partnership doing business as Sidley Austin LLP and practicing in affiliation with other Sidley Austin partnerships.

agents of the parties to the documents and of public officials. In rendering this opinion letter, except for the matters that are specifically addressed in the opinion expressed below, with your permission, we have assumed, and are relying on without independent investigation, (i) the authenticity of all documents submitted to us as originals, (ii) the conformity to the originals of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such copies, (iii) the genuineness of signatures, (iv) the legal capacity of natural persons signing the documents, (v) the necessary entity formation and continuing existence in the jurisdiction of formation, and the necessary licensing and qualification in all jurisdictions, of all parties to the documents, (vi) the necessary entity authorization, execution, delivery and enforceability (as limited by bankruptcy and other insolvency laws) of all documents by all parties thereto, and the necessary entity power and authority with respect thereto, (vii) the validity, binding effect, and enforceability of all documents, (viii) that each of the parties to the documents will comply (without waiver) with all of the terms of such documents, and (ix) that there is not any other agreement that modifies or supplements the agreements expressed in any document to which this opinion letter relates and that renders the opinion expressed below inconsistent with such document as so modified or supplemented.

In rendering this opinion letter, except for matters that are specifically addressed in the opinion expressed below, we have made no inquiry, have conducted no investigation and assume no responsibility with respect to (i) the accuracy of and compliance by the parties thereto with the representations, warranties, covenants, certifications and assumptions as to factual matters contained in any document or (ii) the conformity of the documents to the requirements of any agreement to which this opinion letter relates.

Based on the foregoing and subject to the qualifications, representations, warranties, covenants, certifications and assumptions stated herein, we are of the opinion that under current United States federal income tax law as of the date of this opinion letter, although there are no regulations, rulings or judicial precedents addressing the characterization of securities having terms substantially similar to the Notes for United States federal income tax purposes, the Notes will be classified for United States federal income tax purposes as indebtedness of the Company to the extent that they are not beneficially owned by any person related to the Company including (i) any member of the Company’s “expanded group” within the meaning of the final and temporary regulations under section 385 (the “Section 385 Regulations”) of the Internal Revenue Code of 1986, as amended (the “Code”), (ii) with respect to the Company’s expanded group, a “controlled partnership” within the meaning of the Section 385 Regulations, or (iii) a disregarded entity owned by any entity described in (i) or (ii) for United States federal income tax purposes.

Other than in the context of certain related party debt instruments addressed under the Section 385 Regulations, there are no Treasury regulations defining instruments held by persons unrelated to the issuer as equity or indebtedness for United States federal income tax purposes.

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Furthermore, there are no controlling Treasury regulations, published rulings, or judicial decisions involving securities with terms substantially the same as the Notes that discuss whether, for United States federal income tax purposes, the securities constitute equity or indebtedness. Therefore, our opinion regarding the characterization of the Notes as evidences of indebtedness is based upon rulings and judicial decisions under the Code involving situations that we consider to be analogous and an analysis of all of the facts and circumstances surrounding the issuance and sale of the Notes.

The foregoing opinion is based only on the federal income tax laws of the United States of America, Treasury regulations promulgated thereunder, and administrative and judicial interpretations thereof, all of which are subject to change. The foregoing opinion is limited to the matters addressed herein, and no other opinion is rendered with respect to other United States federal tax matters or to any issues arising under the tax laws of any other country, or any state or locality or governmental agency (other than the Internal Revenue Service) including without limitation (i) any statute, regulation, or provision of law of any state, county, municipality, or other political subdivision or any agency or instrumentality thereof or (ii) the securities or tax laws of any jurisdiction (other than the federal income tax laws of the United States of America). Additional issues may exist that could affect the United States federal tax treatment of the transaction or matter that is the subject of this opinion, and this opinion letter does not consider or provide a conclusion with respect to such additional issues. You should be aware that this opinion letter represents conclusions as to the application of existing law, regulations, administrative rules and practices, and legislative history to the transactions described above. There can be no assurance, however, that existing law will not change or that contrary positions will not be taken by the Internal Revenue Service. Any such change might be retroactive and might affect the opinion set forth above.

We express no opinion on any other laws and intimate no view on any other matter that may be relevant to your interests. We also caution you that our opinion depends upon the facts, representations, warranties, covenants, certifications, assumptions and documents to which this letter refers, which are subject to change, reinterpretation and misunderstanding. Our conclusion could differ if these items on which we have relied are, become or are found to be different.

This opinion letter is rendered as of the date hereof and we undertake no obligation to update the opinion expressed herein after the date of this letter or advise you of changes in the event there is any change in legal authorities, facts, representations, warranties, covenants, certifications and assumptions or documents on which this opinion letter is based (including the taking of any action by any party to the documents pursuant to any opinion of counsel or a waiver), or any inaccuracy in any of these items upon which we have relied in rendering this opinion letter, unless we are specifically engaged to do so. Except as described in the next paragraph, this opinion letter may not be distributed, quoted in whole or in part or otherwise

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reproduced in any document, or filed with any governmental agency without our express written consent.

We hereby consent to the filing of this opinion as an exhibit to the Company’s Current Report on Form 8-K dated the date hereof and being filed by the Company with the Securities and Exchange Commission, which will be incorporated by reference in the registration statement of which the Preliminary Prospectus Supplement and the Prospectus Supplement each form a part. We also consent to the references to Sidley Austin LLP under the captions “Material United States Federal Income Tax Considerations” and “Legal Matters” in the Preliminary Prospectus Supplement and the Prospectus Supplement. In giving this consent, we do not admit that we are in the category of persons whose consent is required by Section 7 of the Securities Act of 1933, as amended.

Sincerely,

/s/ Sidley Austin LLP

Sidley Austin LLP

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EX-99.1

Exhibit 99.1

The expenses to be incurred by CMS Energy Corporation relating to the offering of $30,000,000 principal amount of its 5.875% Junior Subordinated Notes due 2078, under CMS Energy Corporation’s Registration Statement on Form S-3 (Registration No. 333-216355) and a related prospectus supplement filed with the Securities and Exchange Commission and dated September 20, 2018 are estimated to be as follows:

Estimated Fees

SEC Registration Fee (1)	$	0
Services of Independent Registered Public Accounting Firms	5,000
Legal Fees and Expenses	$	10,000
Rating Agency Fees	46,050
Printing and Delivery Expenses	$	8,000
Total	$	69,050

(1) SEC Registration Fee with respect to the 5.875% Junior Subordinated Notes due 2078 was previously paid on September 26, 2018.