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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-A
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR (g) OF THE
SECURITIES EXCHANGE ACT OF 1934
CMS ENERGY CORPORATION
(Exact name of registrant as specified in its charter)
Michigan 38-3220537
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(State of incorporation (IRS Employer Identification No.)
or organization)
Fairlane Plaza South, Suite 1100
330 Town Center Drive, Dearborn, MI 48126
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(Address of principal (Zip Code)
executive offices)
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(b) OF THE ACT:
Class G Common Stock New York Stock Exchange
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(Title of Class) (Name of Exchange)
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(g) OF THE ACT:
None.
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Item 1. Description of Registrant's Securities to be Registered.
A description of the Registrant's securities to be registered is
incorporated herein by reference to the description set forth under the
caption "Description of Capital Stock -- Class G Common Stock" in the
Preliminary Prospectus dated June 1, 1995, contained in the Registrant's
Registration Statement on Form S-3 (Registration No. 33-57719) filed with
the Securities and Exchange Commission (the "Form S-3"). Pricing and
other terms established at the time of issuance are hereby deemed to be
incorporated by reference to any prospectus or prospectus supplement filed
in accordance with Rule 424(b) of the Securities Act of 1933, as amended,
relating to the securities registered hereby.
Item 2. Exhibits.
The securities described are to be registered pursuant to
Section 12(b) of the Securities Exchange Act of 1934, as amended.
Accordingly, the following exhibits are filed herewith or incorporated by
reference herein pursuant to Rule 12b-23 and Part I to the Instructions as
to Exhibits on Form 8-A:
1. "Description of Capital Stock -- Class G Common Stock" in the
Preliminary Prospectus dated June 1, 1995, contained in the
Registrant's Registration Statement on Form S-3 (Registration
No. 33-57719) filed with the Securities and Exchange
Commission.
2. Specimen certificate representing shares of Class G Common
Stock of the Registrant will be provided as soon as available.
3. Form of Underwriting Agreement. Incorporated by reference to
Exhibit 1(b) of the Form S-3.
4. Composite Articles of Incorporation of CMS Energy Corporation,
as amended. Incorporated by reference to Exhibit 3(b) of the
Form S-3.
5. By-laws of CMS Energy Corporation. Incorporated by reference
to Exhibit 3(c) of the Form S-3.
6. Indenture dated as of September 15, 1992 between CMS Energy
Corporation and NBD Bank, National Association, as Trustee.
First Supplemental Indenture dated as of October 1, 1992
between CMS Energy Corporation and NBD Bank, National
Association, as Trustee. Second Supplemental Indenture dated
as of October 1, 1992 between CMS Energy Corporation and NBD
Bank, National Association, as Trustee. Incorporated by
reference to Exhibit 4(d) of the Form S-3.
7. Indenture dated as of January 15, 1994 between CMS Energy and
The Chase Manhattan Bank, N.A., as Trustee. First Supplemental
Indenture dated as January 20, 1994 between CMS Energy and the
Chase Manhattan Bank, National Association, as Trustee.
Incorporated by reference to Exhibit 4(e) of Form S-3
8. Credit Agreement dated as of July 29, 1994 among CMS Energy,
Citibank, N.A. and Union Bank as co-agents and certain banks
named therein, and the Exhibits thereto. Incorporated by
reference to Exhibit 4(f) of the Form S-3.
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SIGNATURE
Pursuant to the requirements of Section 12 of the Securities
Exchange Act of 1934, the Registrant has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereto duly
authorized.
CMS ENERGY CORPORATION
June 6, 1995 By: /s/ Alan M. Wright
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Date Alan M. Wright
Senior Vice President and
Chief Financial Officer
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EXHIBIT NO. 1.
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EXHIBIT 1.
DESCRIPTION OF CAPITAL STOCK -- CLASS G COMMON STOCK
The following is a description of the Capital Stock of CMS Energy,
reflecting the filing of the Restated and Amended Articles of
Incorporation authorizing the Class G Common Stock with the Michigan
Department of Commerce prior to the completion of any offering of the
Class G Common Stock. This description does not purport to be complete
and is qualified in its entirety by reference to the Articles of
Incorporation and the amendment to the Articles of Incorporation as
approved by CMS Energy's shareholders on March 21, 1995 ("Charter
Amendment") which have been filed as exhibits to the Registration
Statement of which this Prospectus is a part.
General
The authorized capital stock of CMS Energy consists of 320 million
shares of capital stock, of which 10 million are shares of preferred
stock, $.01 par value ("Preferred Stock"), 60 million are shares of common
stock, no par value, designated as Class G Common Stock, and 250 millon
are shares of common stock, par value $.01 per share, designated as CMS
Energy Common Stock. As of May 26, 1995, there were no shares of
Preferred Stock or Class G Common Stock issued or outstanding, and
87,995,228 shares of CMS Energy Common Stock were issued and outstanding.
Authorized but unissued shares of Class G Common Stock will be
available for issuance by CMS Energy from time to time, as determined by
the Board of Directors, for any proper corporate purpose, which could
include raising capital for use by CMS Energy (in the case of the sale of
any Retained Interest Shares) or for attribution to the Consumers Gas
Group (in the case of any sale of Additional Shares), payment of
dividends, providing compensation or benefits to employees or acquiring
companies or businesses. The issuance of such shares of Class G Common
Stock would not be subject to approval by the shareholders of CMS Energy
unless deemed advisable by the Board of Directors or required by
applicable law, regulation or stock exchange listing requirements. Any
net proceeds from, or other effects of, the issuance by CMS Energy of
Class G Common Stock (other than Retained Interest Shares) would be
attributed to the Consumers Gas Group.
The Class G Common Stock is designed to establish a class of Common
Stock that is intended to reflect the performance of the businesses
attributed to the Consumers Gas Group. See "Business of the Consumers Gas
Group" in the Prospectus.
Preferred Stock
The authorized Preferred Stock may be issued without the approval
of the holders of Common Stock in one or more series, from time to time,
with each such series to have such designation, powers, preferences and
relative, participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, as shall be stated in
a resolution providing for the issue of any such series adopted by the
Board of Directors. The future issuance of Preferred Stock may have the
effect of delaying, deferring or preventing a change in control of CMS
Energy.
Class G Common Stock
Dividends: Dividends on the Class G Common Stock will be limited
to the lesser of (i) the assets of CMS Energy legally available for
dividends under Michigan law and (ii) the Available Class G Dividend
Amount. Michigan law prohibits a dividend, if after giving it effect, CMS
Energy would not be able to pay its debts as they become due in the usual
course of business, or CMS Energy's total assets would be less than the
sum of its total liabilities plus, unless the Articles of Incorporation of
CMS Energy are amended to provide otherwise, the amount that would be
needed, if CMS Energy were to be dissolved at the time of the dividend, to
satisfy the preferential rights upon dissolution of any shareholders whose
preferential rights are superior to those receiving the assets.
Consequently, the amount allowed under clause (i) above will reflect the
amount of any net losses of CMS Energy, including the businesses
attributed to the Consumers Gas Group, and any dividends or distributions
on the Class G Common Stock or the CMS Energy Common Stock. However, such
net losses, dividends or distributions would not reduce assets legally
available for distribution on the Class G Common Stock unless the legally
available assets of CMS Energy are less than the Available Class G
Dividend Amount limitations set forth in the Articles of Incorporation.
Subject to the express terms of any outstanding Preferred Stock, the
foregoing limitations and the contractual limitations described under
"Dividend Policy," the Board of Directors may, in its sole discretion,
declare and pay dividends exclusively on either class of Common Stock, in
equal or unequal amounts, notwithstanding the respective amounts of assets
available for dividends on each class, the respective voting rights of
each class, the amounts of prior dividends declared on each class or any
other factor. It is the Board of Directors' current intention that the
declaration or payment of dividends with respect to the Class G Common
Stock shall 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.
The "Available Class G Dividend Amount," on any date ("calculation
date"), means the excess of:
(i) the product of (a) the Gas Group Fraction as of such
calculation date and (b) an amount equal to the total assets
attributed to the Consumers Gas Group less the total liabilities
attributed to the Consumers Gas Group as of such calculation date
determined in accordance with generally accepted accounting
principles as in effect at such time applied on a basis consistent
with that applied in determining Consumers Gas Group income; over
(ii) the product of (a) the Gas Group Fraction as of such
calculation date and (b) the amount that would be needed to satisfy
any preferential rights to which holders of any outstanding shares
of preferred stock attributed to the Consumers Gas Group are
entitled as of such calculation date;
provided that such excess will be reduced by an amount, if any, sufficient
to ensure that the Consumers Gas Group will be able to pay its debts as
they become due in the usual course of business.
The "Gas Group Fraction," as of any calculation date, represents
the fractional interest in the businesses attributed to the Consumers Gas
Group that is held by the holders of the outstanding Class G Common Stock.
It is a fraction, the numerator of which is the number of shares of Class
G Common Stock outstanding on such date and the denominator of which is
the sum of the number of shares of Class G Common Stock issued and
outstanding on such date plus the number of Retained Interest Shares on
such date, but such fraction will never be greater than one.
The "Retained Interest Shares" as of any date represents the
interest in the businesses attributed to the Consumers Gas Group that is
not held by the holders of the outstanding shares of Class G Common Stock,
but is retained by CMS Energy. The Retained Interest Shares are not
deemed to be outstanding shares of Class G Common Stock and have no voting
rights. The number of Retained Interest Shares will initially be the
number of shares of Class G Common Stock that the Board of Directors
deems, prior to the first issuance of Class G Common Stock, to represent
100% of the common stockholders' equity of CMS Energy attributable to the
Consumers Gas Group, less the number of shares of Class G Common Stock to
be first issued. The number from time to time will be:
(i) adjusted as appropriate to reflect subdivisions (by
stock split or otherwise) and combinations (by reverse stock split
or otherwise) of Class G Common Stock and dividends or
distributions of shares of Class G Common Stock to holders thereof
and other reclassifications of Class G Common Stock;
(ii) decreased by (A) the number of Retained Interest
Shares issued or sold by CMS Energy, including any sold pursuant to
the Offering, (B) the number of Retained Interest Shares issued
upon conversion or exercise of Convertible Securities (as defined
below) which are not attributed to the Consumers Gas Group, (C) the
number of Retained Interest Shares issued by CMS Energy as a
dividend or distribution or by reclassification or exchange to
holders of CMS Energy Common Stock and (D) the number (rounded, if
necessary, to the nearest whole number) equal to the aggregate fair
value (as determined by the Board of Directors) of assets or
properties of CMS Energy which cease to be attributable to the
Consumers Gas Group in consideration for a decrease in the Retained
Interest Shares determined by dividing such amount by the Fair
Market Value of one share of Class G Common Stock as of the date
such assets or properties cease to be attributable to the Consumers
Gas Group; and
(iii) increased by (A) the number of issued and outstanding
shares of Class G Common Stock repurchased by CMS Energy with
assets which are not attributed to the Consumers Gas Group, and (B)
the number (rounded, if necessary, to the nearest whole number)
equal to the aggregate fair value (as determined by the Board of
Directors) of assets or properties of CMS Energy that are
attributed to the Consumers Gas Group in consideration for an
increase in the number of Retained Interest Shares divided by the
Fair Market Value of one share of Class G Common Stock as of the
date of such attribution.
"Convertible Securities" means any securities of CMS Energy that
are convertible into or exercisable for or evidence the right to acquire
any shares of CMS Energy Common Stock or Class G Common Stock, whether at
such time or upon the occurrence of certain events, pursuant to
antidilution provisions of such securities or otherwise.
Voting: Except as set forth below and except as otherwise provided
by law, the holders of both classes of Common Stock vote together as a
single class on all matters as to which all holders of Common Stock are
entitled to vote. On all matters to be voted on by the holders of both
classes of Common Stock voting together as a single class (i) each share
of outstanding CMS Energy Common Stock would have one vote and (ii) each
share of outstanding Class G Common Stock would have one vote. If shares
of only one class of Common Stock are outstanding, each share of that
class will have one vote. If any class of Common Stock of CMS Energy is
entitled to vote separately as a class, with respect to any matter, each
share of that class shall be entitled to one vote in the separate vote on
such matter.
CMS Energy will set forth the amount of outstanding shares of the
CMS Energy Common Stock and the Class G Common Stock in its Annual Reports
on Form 10-K and Quarterly Reports on Form 10-Q filed pursuant to the
Exchange Act and will disclose in any proxy statement for a shareholders'
meeting the number of outstanding shares of the CMS Energy Common Stock
and the Class G Common Stock.
Under Michigan law, the approval of the holders of a majority of
the outstanding shares of a class of Common Stock, voting as a separate
class, would be necessary for authorizing, effecting or validating the
merger or consolidation of CMS Energy into or with any other corporation
if such merger or consolidation would adversely affect the powers or
special rights of such class of stock, and to authorize any amendment to
the Articles of Incorporation that would increase or decrease the
aggregate number of authorized shares of such class or alter or change the
powers, preferences or special rights of the shares of such class so as to
affect them adversely. The Articles of Incorporation also provide that
unless the vote or consent of a greater number of shares shall then be
required by law, the approval of the holders of a majority of the
outstanding shares of either class of Common Stock, voting as a separate
class, will be necessary for authorizing, effecting or validating the
merger or consolidation of CMS Energy into or with any other corporation
if such merger or consolidation would adversely affect the powers or
special rights of such class of Common Stock, either directly by amendment
to the Articles of Incorporation or indirectly by requiring the holders of
such class to accept or retain, in such merger or consolidation, anything
other than (i) shares of such class or (ii) shares of the surviving or
resulting corporation, having, in either case, powers and special rights
identical to those of such class prior to such merger or consolidation.
The effect of these provisions may be to permit the holders of a majority
of the outstanding shares of either class of Common Stock to block any
such merger or amendment which would adversely affect the powers or
special rights of holders of such class of Common Stock.
Exchange or Redemption: The Class G Common Stock will be subject
to exchange or redemption, as the case may be, upon the terms described
below.
At any time after the date on which all of the consolidated assets
and liabilities attributed to the Consumers Gas Group (and no other assets
or liabilities) become the consolidated assets and liabilities of a single
corporation, all of the common stock of which is owned by CMS Energy ("Gas
Group Subsidiary"), the Board of Directors, in its sole discretion,
provided that there are assets of CMS Energy legally available therefor,
may declare that all of the outstanding shares of Class G Common Stock
will be exchanged for a number of outstanding shares of common stock of
the Gas Group Subsidiary equal to the product of the Gas Group Fraction
and the number of all of the outstanding shares of common stock of the Gas
Group Subsidiary, on a pro rata basis, each of which shall, upon issuance,
be fully paid and nonassessable. CMS Energy would retain the balance of
the outstanding shares of the common stock of the Gas Group Subsidiary.
Upon the Disposition, in one transaction or a series of related
transactions, by CMS Energy of all or substantially all of the properties
and assets attributed to the Consumers Gas Group (other than in connection
with the Disposition by CMS Energy of all of its properties and assets in
one transaction or a series of related transactions which results in the
dissolution, liquidation or winding up of CMS Energy as set forth under
"Liquidation" below) to any person, entity or group (other than (a)
holders of all outstanding shares of Class G Common Stock on a pro rata
basis or (b) a person, entity or group in which CMS Energy, directly or
indirectly, owns a majority equity interest), CMS Energy is required, on
or prior to the first Business Day (as defined below) following the 90th
day following the consummation of such Disposition, to exchange each
outstanding share of Class G Common Stock for a number of fully paid and
nonassessable shares of CMS Energy Common Stock having a Fair Market Value
equal to 110% of the Fair Market Value of one share of Class G Common
Stock as of the date of the first public announcement by CMS Energy of
such Disposition.
If immediately after any event, CMS Energy, directly or indirectly,
owns less than a majority equity interest in any person, entity or group
in which CMS Energy, directly or indirectly, owned a majority equity
interest immediately prior to the occurrence of such event, a Disposition
of all of the properties and assets attributed to the Consumers Gas Group
owned by such person, entity or group shall be deemed to have occurred.
In the case of a Disposition of properties and assets in a series of
related transactions, such Disposition shall not be deemed to have been
consummated until the consummation of the last of such transactions.
"Business Day" means each weekday other than any day on which any
relevant class of Common Stock is not traded on any national securities
exchange or the National Association of Securities Dealers Automated
Quotations National Market or in the over-the-counter market.
"Disposition" means a sale, transfer, assignment or other
disposition (whether by merger, consolidation, sale or contribution of
assets, properties or stock or otherwise), but does not include (1) an
attribution of assets or properties of CMS Energy to the Consumers Gas
Group if such attribution increases the Retained Interest Shares, or
(2) assets or properties of CMS Energy ceasing to be attributed to the
Consumers Gas Group if the result is a decrease in the Retained Interest
Shares.
"Fair Market Value" of shares of either class of Common Stock on
any date means the average of the daily closing prices thereof for the
period of 20 consecutive Business Days commencing on the 30th Business Day
prior to such date. The closing price of shares of a class of Common
Stock for each Business Day shall be (i) if such shares are listed or
admitted to trading on a national securities exchange, the closing price
on the New York Stock Exchange Composite Tape (or any successor composite
tape reporting transactions on national securities exchanges) or, if such
New York Stock Exchange Composite Tape shall not be in use or shall not
report transactions in such shares, the last reported sales price regular
way on the principal national securities exchange on which such shares are
listed or admitted to trading (which shall be the national securities
exchange on which the greatest number of such shares of stock has been
traded during such 20 consecutive Business Days), or, if there is no
transaction on any such Business Day in any such situation, the mean of
the bid and asked prices on such Business Day, or (ii) if such shares are
not listed or admitted to trading on any such exchange, the closing price,
if reported, or, if the closing price is not reported, the average of the
closing bid and asked prices as reported by the National Association of
Securities Dealers Automated Quotations or a similar source selected from
time to time by CMS Energy for this purpose, and (iii) reduced, if such
Business Day is prior to any "ex" date or any similar date occurring
during such period for any dividend or distribution (other than as
contemplated in (iv) below) paid or to be paid with respect to such
shares, by the fair market value (as determined by the Board of Directors)
of the per share amount of such dividend or distribution, and (iv)
appropriately adjusted, if such Business Day is prior to (A) the effective
date of any subdivision (by stock split, stock dividend, or otherwise) or
combination (by reverse stock split or otherwise) of such shares, or
(B) the "ex" date or any similar date for any dividend or distribution of
shares of such class of Common Stock on the outstanding shares of such
class of Common Stock, occurring during such period, to reflect such
subdivision, combination, dividend or distribution. In the event such
closing or bid and asked prices are unavailable, the Fair Market Value of
such shares shall be determined by the Board of Directors.
"Substantially all of the properties and assets attributed to the
Consumers Gas Group" means a portion of such properties and assets (A)
that represents at least 80% of the then-current fair market value (as
determined by the Board of Directors) of the properties and assets
attributed to the Consumers Gas Group as of such date or (B) from which
were derived at least 80% of the aggregate revenues for the immediately
preceding twelve fiscal quarterly periods of CMS Energy (calculated on a
pro forma basis to include revenues derived from any of such properties
and assets acquired during such periods) derived from the properties and
assets attributed to the Consumers Gas Group as of such date.
In addition, CMS Energy may, by a majority vote of the Board of
Directors then in office, at any time exchange for each outstanding share
of Class G Common Stock a number of fully paid and nonassessable shares of
CMS Energy Common Stock having a Fair Market Value equal to 115% of the
Fair Market Value of one share of Class G Common Stock as of the date of
the first public announcement by CMS Energy of such exchange.
After the exchange date on which all outstanding Class G Common
Stock was exchanged, any share of Class G Common Stock that is issued on
conversion or exercise of any Convertible Securities will, immediately
upon issuance pursuant to such conversion or exercise and without any
notice or any other action on the part of CMS Energy or the Board of
Directors or the holder of such share of Class G Common Stock: (A) in the
event the then-outstanding Class G Common Stock was exchanged for CMS
Energy Common Stock on such exchange date as set forth in the first or
sixth immediately preceding paragraphs, be exchanged for the kind and
amount of shares of capital stock and other securities and property that a
holder of such Convertible Security would have been entitled to receive
pursuant to the terms of such Convertible Security had such terms provided
that the conversion or exercise privilege in effect immediately prior to
any exchange by CMS Energy of any of its capital stock for shares of any
other capital stock of CMS Energy would be adjusted so that the holder of
any such Convertible Security thereafter surrendered for conversion or
exercise would be entitled to receive the number of shares of capital
stock of CMS Energy and other securities and property such holder would
have owned immediately following such action had such Convertible Security
been converted or exercised immediately prior thereto; or (B) in the event
the then-outstanding Class G Common Stock was exchanged for common stock
of the Gas Group Subsidiary as set forth in the seventh immediately
preceding paragraph, be redeemed, to the extent of the assets of CMS
Energy legally available therefor, for $.01 in cash. The provisions of
clause (A) above do not apply to the extent that equivalent adjustments
are otherwise made pursuant to the provisions of such Convertible
Securities.
Under Section 303 of the Michigan Business Corporation Act
("MBCA"), upon the prior approval of shareholders, a board of directors
may amend a corporation's articles of incorporation to increase the number
of authorized shares of any class or series of stock to the number that
will be sufficient, when added to the previously authorized but unissued
shares of such class or series, to satisfy the conversion privileges of
any convertible securities of the corporation. The Articles of
Incorporation deem the required exchange after the Disposition, in one
transaction or a series of related transactions, of all or substantially
all of the properties and assets attributed to the Consumers Gas Group and
the optional exchange at a 15% Premium of Class G Common Stock by CMS
Energy for CMS Energy Common Stock, each as discussed above, as conversion
privileges within the meaning of Section 303 of the MBCA. Accordingly, in
order to give effect to any such exchange, the Board of Directors would
have the authority to amend the Articles of Incorporation to increase the
authorized shares of capital stock generally and of CMS Energy Common
Stock specifically to the number that would be sufficient, when added to
the previously authorized but unissued shares of capital stock and CMS
Energy Common Stock, to give effect to such exchange.
General Exchange Provisions: In the event of any exchange of Class
G Common Stock, CMS Energy will cause to be given to each holder of Class
G Common Stock to be so exchanged a notice stating (A) that shares of
Class G Common Stock will be exchanged, (B) the date of the exchange, (C)
the kind and amount of shares of capital stock or cash and/or securities
or other property to be received by such holder with respect to each share
of such Class G Common Stock held by such holder, including details as to
the calculation thereof, (D) the place or places where certificates for
shares of Class G Common Stock, properly endorsed or assigned for transfer
(unless CMS Energy shall waive such requirement), are to be surrendered
for delivery of certificates for shares of such capital stock or cash
and/or securities or other property and (E) that, except as provided in
the following paragraph, dividends or other distributions on Class G
Common Stock will cease to be paid as of such exchange date. Such notice
shall be sent by first-class mail, postage prepaid, not less than 30 days
nor more than 60 days prior to the exchange date and in any case to each
holder of the Class G Common Stock to be exchanged at such holder's
address as the same appears on the stock transfer books of CMS Energy.
Neither the failure to mail such notice to any particular holder of Class
G Common Stock nor any defect therein shall affect the sufficiency thereof
with respect to any other holder of Class G Common Stock.
No adjustments in respect of dividends or other distributions will
be made upon the exchange of any shares of Class G Common Stock; provided,
however, that if the exchange date with respect to Class G Common Stock
shall be subsequent to the record date for the payment of a dividend or
other distribution thereon or with respect thereto, the holders of shares
of Class G Common Stock at the close of business on such record date shall
be entitled to receive the dividend or other distribution payable on or
with respect to such shares on the date set for payment of such dividend
or other distribution, notwithstanding the exchange of such shares or CMS
Energy's default in payment of the dividend or distribution due on such
date.
Before any holder of shares of Class G Common Stock will be
entitled to receive certificates representing shares of any capital stock
or cash and/or securities or other property to be received by such holder
with respect to any exchange, such holder shall surrender at such office
as CMS Energy shall specify certificates for such shares of Common Stock,
properly endorsed or assigned for transfer (unless CMS Energy shall waive
such requirement). CMS Energy will as soon as practicable after such
surrender of certificates representing such shares of Class G Common Stock
deliver to the person for whose account such shares of Class G Common
Stock were so surrendered, or to the nominee or nominees of such person,
certificates representing the number of whole shares of the kind of
capital stock or cash and/or securities or other property to which such
person shall be entitled as aforesaid, together with any fractional
payment referred to in the next paragraph.
CMS Energy will not be required to issue or deliver fractional
shares of any class of capital stock or any fractional securities to any
holder of Class G Common Stock upon any exchange, dividend or other
distribution. If more than one share of Class G Common Stock shall be
held at the same time by the same holder, CMS Energy may aggregate the
number of shares of any class of capital stock that shall be issuable or
the amount of securities that shall be deliverable to such holder upon any
exchange, dividend or other distribution (including any fractions of
shares or securities). If the number of shares of any class of capital
stock or the amount of securities remaining to be issued or delivered to
any holder of Class G Common Stock is a fraction, CMS Energy will, if such
fraction is not issued or delivered to such holder, pay a cash adjustment
in respect of such fraction in an amount equal to the fair market value of
such fraction on the fifth Business Day prior to the date such payment is
to be made. For purposes of the preceding sentence, "fair market value"
of any fraction will be (i) in the case of any fraction of a share of any
class of Common Stock, the product of such fraction and the Fair Market
Value of one share of such Common Stock and (ii) in the case of any other
fractional security, such value as is determined by the Board of
Directors.
From and after any applicable exchange date, all rights of a holder
of shares of Class G Common Stock that were exchanged shall cease except
for the right, upon surrender of the certificates representing such shares
of Class G Common Stock, to receive certificates representing shares of
the kind and amount of capital stock or cash and/or securities or other
property for which such shares were exchanged or redeemed, together with
any fractional payment contemplated by the immediately preceding paragraph
and rights to dividends or other distributions as provided in the third
immediately preceding paragraph. No holder of a certificate that
immediately prior to the applicable exchange date for Class G Common Stock
represented shares of Class G Common Stock will be entitled to receive any
dividend or other distribution with respect to shares of any kind of
capital stock into which such Class G Common Stock was exchanged until
surrender of such holder's certificate for a certificate or certificates
representing shares of such capital stock. Upon such surrender, there
shall be paid to the holder the amount of any dividends or other
distributions (without interest) which theretofore became payable with
respect to a record date after the exchange date, but that were not paid
by reason of the foregoing, with respect to the number of whole shares of
the kind of capital stock represented by the certificate or certificates
issued upon such surrender. From and after an exchange date for Class G
Common Stock, CMS Energy will, however, be entitled to treat the
certificates for such Class G Common Stock that have not yet been
surrendered for exchange as evidencing the ownership of the number of
whole shares of the kind or kinds of capital stock for which the shares of
such Class G Common Stock represented by such certificates shall have been
exchanged, notwithstanding the failure to surrender such certificates.
CMS Energy will pay any and all documentary, stamp or similar issue
or transfer taxes that may be payable in respect of the issue or delivery
of any shares of capital stock on exchange of shares of Class G Common
Stock. CMS Energy will not, however, be required to pay any tax that may
be payable in respect of any transfer involved in the issue and delivery
of any shares of capital stock in a name other than that in which the
shares of the Class G Common Stock so exchanged were registered, and no
such issue or delivery shall be made unless and until the person
requesting such issue has paid to CMS Energy the amount of any such tax,
or has established to the satisfaction of CMS Energy that such tax has
been paid.
Liquidation, Subdivision and Combination: In the event of a
dissolution, liquidation or winding up of CMS Energy, whether voluntary or
involuntary, after payment or provision for payment of the debts and other
liabilities of CMS Energy and after there shall have been paid or set
apart for the holders of Preferred Stock the full preferential amounts
(including any accumulated and unpaid dividends) to which they are
entitled, the holders of Class G Common Stock and CMS Energy Common Stock
will be entitled to receive an amount per share equal to the amount of
assets remaining for distribution to holders of Common Stock divided by
the total number of shares of CMS Energy Common Stock and Class G Common
Stock then outstanding. The liquidation rights of the holders of the
respective classes may not bear any relationship to the relative Fair
Market Values or the relative voting rights of the two classes.
If CMS Energy subdivides (by stock split, stock dividend or
otherwise) or combines (by reverse stock split or otherwise) the
outstanding shares of either Class G Common Stock or CMS Energy Common
Stock, the liquidation rights of shares of CMS Energy Common Stock
relative to Class G Common Stock will be appropriately adjusted so as to
avoid any dilution in aggregate voting or liquidation rights of either
class of Common Stock. For example, in case CMS Energy were to effect a
two-for-one split of Class G Common Stock, the per share liquidation
rights of CMS Energy Common Stock would be multiplied by two in order to
avoid dilution in the aggregate liquidation rights of holders of CMS
Energy Common Stock and each post-split share of Class G Common Stock
would have one-half of a vote.
Neither the merger or consolidation of CMS Energy into or with any
other corporation, nor the merger or consolidation of any other
corporation into or with CMS Energy nor any sale, transfer or lease of all
or any part of the assets of CMS Energy, will be deemed to be a
dissolution, liquidation or winding up for purposes of the liquidation
provisions set forth above.
Determinations by the Board of Directors: Any determinations made
in compliance with applicable law by the Board of Directors under any of
the provisions in the Restated and Amended Articles of Incorporation would
be final and binding on all shareholders of CMS Energy.
Other Rights: The holders of Class G Common Stock would have no
preemptive rights or any other rights to convert their shares into any
other securities of CMS Energy.
Retained Interest of CMS Energy In Consumers Gas Group; Gas Group
Fraction: The "Retained Interest" represents the interest in the common
stockholders' equity of CMS Energy attributed to the Consumer Gas Group
that would be deemed to be retained by CMS Energy after shares of Class G
Common Stock are distributed or sold in the Offering or subsequent public
offerings. If the total number of shares of Class G Common Stock that is
distributed or sold represents all of such interest, there will be no
Retained Interest.
Assuming that the Board of Directors has designated 32 million
shares of Class G Common Stock as the number of such shares which it deems
to represent 100% of the CMS Energy common stockholders' equity
attributable to the Consumers Gas Group, such shares will represent the
initial Retained Interest Shares. If 5 million shares of Class G Common
Stock are offered and sold in the Offering, the Retained Interest Shares
would be decreased to 24 million. The Retained Interest Shares are not,
and will not be, outstanding or held by CMS Energy and cannot be voted,
but are used to measure the Retained Interest.
The Gas Group Fraction is the percentage interest in the common
stockholders' equity attributed to the Consumers Gas Group that would be
represented at any time by the issued and outstanding shares of Class G
Common Stock. If shares of Class G Common Stock other than Retained
Interest Shares were sold, the Retained Interest Shares would not be
reduced, but the Retained Interest as a percentage of the common
stockholders' equity attributed to the Consumers Gas Group would nonethe-
less be reduced, and the Gas Group Fraction would be increased
accordingly. As shares of Class G Common Stock are offered and sold from
time to time by CMS Energy, it will identify the number of shares of Class
G Common Stock offered and sold which would (i) decrease the Retained
Interest Shares, or (ii) increase the Gas Group Fraction; the sum of the
percentage equal to the Gas Group Fraction and the percentage of the
common stockholders' equity represented by the Retained Interest would
always equal 100%. A determination as to whether shares of Class G Common
Stock which are sold are or are not Retained Interest Shares would be made
by the Board of Directors, in its sole discretion, after consideration of
a number of factors, including, among others, the relative levels of
internally generated cash flows of each business of CMS Energy, the
capital expenditure plans of and investment opportunities available to
each business of CMS Energy and the availability, cost and time associated
with alternative financing sources.
Any issuance of shares of Class G Common Stock would dilute the
relative voting power of holders of shares of Class G Common Stock
outstanding prior to such issuance.
The Board of Directors could, in its sole discretion, determine
from time to time to cause cash or other property attributed to the
Consumers Gas Group to cease to be attributed to the Consumers Gas Group,
which would decrease the Retained Interest Shares and the Retained
Interest as a percentage of the common stockholders' equity attributed to
the Consumers Gas Group, and would increase the Gas Group Fraction. The
Board of Directors could, in its sole discretion, determine from time to
time to attribute additional cash or other property to the Consumers Gas
Group, which would increase the Retained Interest Shares and the Retained
Interest as a percentage of the common stockholders' equity attributed to
the Consumers Gas Group, and decrease the Gas Group Fraction. The Board
of Directors could determine, in its sole discretion, to make such
attributions after consideration of a number of factors, including, among
others, the relative levels of internally generated cash flows of each
business of CMS Energy, the long-term business prospects for each business
of CMS Energy, including the Consumers Gas Group, the capital expenditure
plans of and the investment opportunities available to each business of
CMS Energy and the availability, cost and time associated with alternative
financing sources. See "Certain Management and Accounting
Policies--Accounting Matters."
In the event of any dividend or other distribution on outstanding
shares of Class G Common Stock while CMS Energy has a Retained Interest,
the Consumers Gas Group's financial statements would be charged in respect
of the Retained Interest with an amount equal to the product of (i) the
aggregate amount paid in respect of such dividend or other distribution,
times (ii) a fraction, the numerator of which is the Retained Interest
Shares and the denominator of which is the total number of shares of Class
G Common Stock then issued and outstanding.
In the event that CMS Energy repurchases shares of Class G Common
Stock for consideration that is not attributed to the Consumers Gas Group,
the Retained Interest Shares and the Retained Interest as a percentage of
the common stockholders' equity attributed to the Consumers Gas Group
would increase, and the Gas Group Fraction would decrease accordingly. In
the event that CMS Energy repurchases shares of Class G Common Stock for
consideration that is attributed to the Consumers Gas Group, the Retained
Interest Shares would not change, but the Retained Interest as a
percentage of the common stockholders' equity attributed to the Consumers
Gas Group would increase, and the Gas Group Fraction would decrease
accordingly. The Board of Directors could, in its sole discretion,
determine whether repurchases of Class G Common Stock should be made with
consideration attributed to the Consumers Gas Group by considering a
number of factors, including, among others, the relative levels of
internally generated cash flows of each business of CMS Energy, the
long-term business prospects for each business of CMS Energy, the capital
expenditure plans of and the investment opportunities available to each
business of CMS Energy and the availability, cost and time associated with
alternative financing sources. See "Certain Management and Accounting
Policies--Accounting Matters."
For further discussion of, and illustrations of the calculation of
the Retained Interest Shares, the Retained Interest as a percentage of the
common stockholders' equity in the Consumers Gas Group and the Gas Group
Fraction and the effects thereon of issuances and repurchases of, and
dividends on, shares of Class G Common Stock, and changes in the Retained
Interest Shares, the Retained Interest and the Gas Group Fraction
occasioned by the attribution of cash or other property, see Appendix II,
"Class G Common Stock Retained Interest Illustrations."
CMS Energy Common Stock
Dividends: The Board of Directors has stated its intention to
declare and pay dividends on the CMS Energy Common Stock based primarily
on the earnings and financial condition of CMS Energy. See "Dividend
Policy" above. The results of operations and financial condition of the
businesses attributed to the Consumers Gas Group will continue to be
reflected in the consolidated financial statements of CMS Energy, and such
financial statements will disclose the interest of the holders of
outstanding shares of Class G Common Stock in the Consumer Gas Group.
For information concerning the policies of CMS Energy with regard
to dividends on common Stock and certain restrictions on its ability to
pay such dividends, see "Dividend Policy" and "Primary source of Dividends
for the Common Stock of CMS Energy; Restrictions on Source of Dividends."
Voting: Except as described herein, the holders of outstanding
Class G Common Stock will vote together with the holders of the
outstanding CMS Energy Common Stock as a single class on all matters as to
which all common shareholders are entitled to vote.
On all matters to be voted on by the holders of Class G Common
Stock and CMS Energy Common Stock together as a single class, subject to
the antidilution provisions set forth under "Class G Common Stock --
Liquidation, Subdivision and Combination" above, each outstanding share of
Class G Common Stock and each outstanding share of CMS Energy Common Stock
will have one vote.
Under Michigan law, the approval of the holders of a majority of
the outstanding shares of a class of Common Stock, voting as a separate
class, would be necessary for authorizing, effecting of validating the
merger of consolidation of CMS Energy into or with any other corporation
if such merger or consolidation would adversely affect the powers or
special rights of such class of stock, and to authorize any amendment to
the Articles of Incorporation that would increase or decrease the
aggregate number of authorized shares of such class or alter or change the
powers, preferences or special rights of the shares of such class so as to
affect them adversely. The Articles of Incorporation also provide that
unless the vote or consent of a greater number of shares shall then be
required by law, the approval of the holders of a majority of the
outstanding shares of either class of Common Stock, voting as a separate
class, will be necessary for authorizing, effecting or validating the
merger or consolidation of CMS Energy into or with any other corporation
if such merger or consolidation would adversely affect the powers or
special rights of such class of Common Stock, either directly by amendment
to the Articles of Incorporation or indirectly by requiring the holders of
such class to accept or retain, in such merger or consolidation, anything
other than (i) shares of such class or (ii) shares of the surviving or
resulting corporation, having, in either case, powers and special rights
identical to those of such class prior to such merger or consolidation.
The effect of these provisions may be to permit the holders of a majority
of the outstanding shares of either class of Common Stock to block any
such merger or amendment which would adversely affect the powers or
special rights of holders of such class of common Stock.
Neither CMS Energy nor any holders of CMS Energy Common Stock would
be entitled to vote with respect to Retained Interest Shares.
Liquidation, Subdivision and Combination: The rights, if any, of
the holders of CMS Energy Common Stock upon the voluntary or involuntary
liquidation, merger, subdivision, combination, consolidation, distribution
or sale of assets, dissolution or winding up of CMS Energy are as set
forth under "Class G Common Stock--Liquidation, Subdivision and
Combination" above.
Exchange or Redemption: The CMS Energy Common Stock may be
exchanged for outstanding shares of Class G Common Stock upon the terms
described under "Class G Common Stock--Exchange or Redemption" above.
Stock Transfer Agent and Registrar
The Transfer Agent and the Registrar for the Common Stock is
Consumers.
<PAGE>
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_________________
FORM 8-A
CMS ENERGY CORPORATION
EXHIBITS
<PAGE>
INDEX TO EXHIBITS
Page No.
--------------
1. "Description of Capital Stock -- Class G
Common Stock" in the Preliminary
Prospectus dated May 25, 1995,
contained in the Registrant's
Registration Statement on Form S-3
(Registration No. 33-57719) filed with
the Securities and Exchange Commission. . . . . Filed Herewith
2. Specimen Certificate. . . . . . . . . . . . . . Will Be Provided As
Soon As Available
3. Form of Underwriting Agreement. . . . . . . . . Incorporated by
Reference
4. Composite Articles of Incorporation of
CMS Energy Corporation, as amended. . . . . . . Incorporated by
Reference
5. By-laws of CMS Energy Corporation . . . . . . . Incorporated by
Reference
6. Indenture between CMS Energy Corporation
and NBD Bank, as Trustee. First
Supplemental Indenture between
CMS Energy Corporation and NBD Bank.
Second Supplemental Indenture between CMS
Energy Corporation and NBD Bank . . . . . . . . Incorporated by
Reference
7. Indenture between CMS Energy and The Chase
Manhattan Bank, N.A., as Trustee. First
Supplemental Indenture between CMS Energy
and Chase Manhattan Bank. . . . . . . . . . . . Incorporated by
Reference
8. Credit Agreement. . . . . . . . . . . . . . . . Incorporated by
Reference
<PAGE>
