<PAGE>
As filed with the Securities and Exchange Commission on June 6, 1995
Registration No. 33-
__________________________________________________________________________
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
________________
Form S-4
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
________________
CMS ENERGY CORPORATION
(Exact name of registrant as specified in its charter)
Michigan 4931 38-2726431
(State or other (Primary Standard Industrial (I.R.S. Employer
jurisdiction of Classification Code Number) Identification No.)
incorporation or
organization)
Fairlane Plaza South, Suite 1100
330 Town Center Drive
Dearborn, Michigan 48126
(313) 436-9261
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
________________
Alan M. Wright
Senior Vice President and Chief Financial Officer
Fairlane Plaza South, Suite 1100
330 Town Center Drive
Dearborn, Michigan 48126
313-436-9560
(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.
Assistant General Counsel
CMS Energy Corporation
212 W. Michigan Avenue
Jackson, Michigan 49201
(517) 788-0179
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of the Registration Statement.
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 the securities being registered on this Form are being offered
in connection with the formation of a holding company and there is
compliance with General Instruction G, check the following box.
---
<TABLE>
<CAPTION>
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 price per unit offering price fee
________________________________________________________________________________________________________________________
<S> <C> <C> <C> <C>
Common Stock 3,000,000 Shares $24.5625(1) $73,687,500(1) $25,409.48
________________________________________________________________________________________________________________________
<FN>
(1) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(c) based upon the
average high and low sale price per share of CMS Energy's Common Stock, par value $.01 per share, as reported in
the consolidated reporting system on June 2, 1995.
</TABLE>
________________
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.
<PAGE>
<PAGE>
CMS ENERGY CORPORATION
CROSS-REFERENCE SHEET
BETWEEN
ITEMS IN FORM S-4 AND LOCATION IN PROSPECTUS
Form S-4 Item Number and Caption Location in Prospectus
A. Information About the Transaction
1. Forepart of Registration Statement
and Outside Front Cover of
Prospectus . . . . . . . . . . . . . . Facing Page; Cross-
Reference Sheet;
Outside Front Cover
Page of Prospectus
2. Inside Front and Outside Back Cover
Pages of Prospectus . . . . . . . . . Inside Front and Outside
Back Cover Pages of
Prospectus
3. Risk Factors, Ratio of Earnings to
Fixed Charges and Other
Information . . . . . . . . . . . . . Documents Incorporated by
Reference; The
Company; Selected
Consolidated Financial
Data
4. Terms of the Transaction . . . . . . . . *
5. Pro Forma Financial Information . . . . . *
6. Material Contracts with the Company
Being Acquired . . . . . . . . . . . . *
7. Additional Information Required for
Reoffering by Persons and Parties
Deemed to be Underwriters . . . . . . *
8. Interests of Named Experts and
Counsel . . . . . . . . . . . . . . . *
9. Disclosure of Commission Position on
Indemnification for Securities
Act Liabilities . . . . . . . . . . . *
B. Information About the Registrant
10. Information with Respect to S-3
Registrants . . . . . . . . . . . . . Documents Incorporated
by Reference; The
Company; Dividends and
Price Range of Common
Stock; Selected
Consolidated Financial
Data; Description of
Capital Stock
11. Incorporation of Certain Information
by Reference . . . . . . . . . . . . . Documents Incorporated by
Reference
12. Information with Respect to S-2 or
S-3 Registrants . . . . . . . . . . . *
13. Incorporation of Certain Information
by Reference . . . . . . . . . . . . . *
14. Information with Respect to
Registrants Other Than S-3 or
S-2 Registrants . . . . . . . . . . . *
C. Information About the Company Being Acquired
15. Information with Respect to S-3
Companies . . . . . . . . . . . . . . *
16. Information with Respect to S-2 or
S-3 Companies . . . . . . . . . . . . *
17. Information with Respect to
Companies Other Than S-2 or
S-3 Companies . . . . . . . . . . . . *
D. Voting and Management Information
18. Information If Proxies, Consents or
Authorizations Are to be
Solicited . . . . . . . . . . . . . . *
19. Information If Proxies, Consents or
Authorizations Are Not to be
Solicited or in an Exchange
Offer . . . . . . . . . . . . . . . . *
_____________
* Omitted since the answer is negative or the Item is not applicable upon
the date of filing of this Registration Statement. The Registrant may
be required to provide information (or further information) in response
to one or more of such Items under certain circumstances by means of a
post-effective amendment to this Registration Statement or supplement
to the prospectus contained herein.<PAGE>
<PAGE>
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 jurisdiction in which such offer, solicitation
or sale would be unlawful prior to registration or qualification under the
securities laws of any such jurisdiction.
SUBJECT TO COMPLETION
DATED June 6, 1995
3,000,000 SHARES
CMS ENERGY CORPORATION
COMMON STOCK
This Prospectus relates to 3,000,000 shares of common stock, par
value $.01 per share (the "CMS Energy Common Stock"), which may be offered
and issued by CMS Energy Corporation ("CMS Energy" or the "Company") from
time to time in connection with acquisitions of other businesses or
properties.
It is anticipated that such acquisitions will consist principally of
businesses (or the assets thereof) complementary to and related to the
Company's current businesses. The consideration for acquisitions will
consist of shares of CMS Energy Common Stock, cash, notes or other
evidences of indebtedness, guarantees, assumption of liabilities or a
combination thereof, as determined from time to time by negotiations
between the Company and the owners or controlling persons of the
businesses or properties to be acquired. In addition, the Company may
lease property from and enter into management or consulting agreements and
non-competition agreements with the former owners and key executive
personnel of the businesses to be acquired.
It is contemplated that the terms of an acquisition will be
determined by negotiations between the Company's representatives and the
owners or controlling persons of the businesses or properties to be
acquired. Factors taken into account in acquisitions include, among other
relevant factors, the quality and reputation of the business, its
management and personnel, earning power, cash flow, growth potential,
patents, licenses, equipment, locations of the business to be acquired and
the market value of the CMS Energy Common Stock when pertinent. It is
anticipated that shares of CMS Energy Common Stock issued in any such
acquisition will be valued at a price reasonably related to the current
market value of the CMS Energy Common Stock, either at the time the terms
of the acquisition are tentatively agreed upon, or at or about the time of
closing, or during the period or periods prior to delivery of the shares.
The CMS Energy Common Stock offered hereby is expected to be listed
on the New York Stock Exchange.
________________
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.
<PAGE>
<PAGE> 2
It is not expected that underwriting discounts or commissions will
be paid by CMS Energy except that finders fees may be paid to persons from
time to time in connection with specific acquisitions. Any person
receiving any such fees may be deemed to be an underwriter within the
meaning of the Securities Act of 1933.
No person is authorized to give any information or to make any
representation not contained in this Prospectus, and, if given or made,
such information or representation should not be relied upon as having
been authorized by the Company. This Prospectus does not constitute an
offer to sell, or a solicitation of an offer to purchase, the securities
offered by this Prospectus in any jurisdiction in which, or to or from any
person to or from whom, it is unlawful to make such an offer, or
solicitations of an offer. Neither the delivery of this Prospectus nor
any distribution of the securities offered pursuant to this Prospectus
shall, under any circumstances, create any implication that there has been
no change in the information set forth herein or in the affairs of the
Company since the date of this Prospectus or that the information herein
is correct as of any time subsequent to its date.
____________________
<PAGE>
<PAGE> 3
AVAILABLE INFORMATION
CMS Energy 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 may be inspected and
copied at the public reference facilities maintained by the Commission at
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the Commission's Regional Offices located at 500 West Madison, 14th Floor,
Chicago, Illinois 60661 and at 7 World Trade Center, 13th Floor, New York,
New York 10048. Copies of such materials can be obtained by mail from the
Public Reference Section of the Commission at 450 Fifth Street, N.W.,
Washington, D.C. 20549 at prescribed rates. The CMS Energy Common Stock
is listed on the New York Stock Exchange and reports, proxy statements and
other information concerning CMS Energy may also be inspected and copied
at the offices of such exchange at 20 Broad Street, New York, New York
10005.
____________________
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by CMS Energy with the Commission
(File No. 1-9513) pursuant to the Exchange Act are hereby incorporated by
reference in this Prospectus and shall be deemed to be a part hereof:
(1) CMS Energy's Annual Report on Form 10-K for the year ended
December 31, 1994;
(2) CMS Energy's Quarterly Report on Form 10-Q for the quarterly
period ended March 31, 1995;
(3) CMS Energy's Current Report on Form 8-K dated January 10,
1995; and
(4) CMS Energy's Current Report on Form 8-K dated February 2,
1995.
All documents subsequently filed by CMS Energy pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act and prior to the
termination of the offering made by this Prospectus shall be deemed to be
incorporated by reference herein and shall be deemed to be a part hereof
from the date of filing of such documents (such documents, and the
documents enumerated above, being hereinafter referred to as "Incorporated
Documents").
Any statement contained in an Incorporated Document 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
Incorporated Document 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.
AS INDICATED ABOVE, THIS PROSPECTUS INCORPORATES DOCUMENTS BY
REFERENCE WHICH ARE NOT PRESENTED HEREIN OR DELIVERED HEREWITH.
CMS ENERGY UNDERTAKES TO PROVIDE WITHOUT CHARGE TO EACH PERSON, INCLUDING
ANY BENEFICIAL OWNER, TO WHOM A COPY OF THIS PROSPECTUS HAS BEEN
DELIVERED, UPON THE WRITTEN OR ORAL REQUEST OF ANY SUCH PERSON, A COPY OF
ANY OR ALL OF THE DOCUMENTS REFERRED TO ABOVE WHICH HAVE BEEN OR MAY BE
INCORPORATED IN THIS PROSPECTUS BY REFERENCE, OTHER THAN EXHIBITS TO SUCH
DOCUMENTS (UNLESS SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED BY REFERENCE
INTO SUCH DOCUMENTS). REQUESTS FOR SUCH COPIES SHOULD BE DIRECTED TO
CMS ENERGY CORPORATION AT ITS PRINCIPAL EXECUTIVE OFFICES LOCATED AT
FAIRLANE PLAZA SOUTH, SUITE 1100, 330 TOWN CENTER DRIVE, DEARBORN,
MICHIGAN 48126, ATTENTION: INVESTOR RELATIONS DEPARTMENT, TELEPHONE:
(517) 788-2590. IN ORDER TO ENSURE TIMELY DELIVERY OF THE DOCUMENTS, ANY
REQUEST SHOULD BE MADE BY FIVE BUSINESS DAYS PRIOR TO THE DATE TO WHICH
THE FINAL INVESTMENT DECISION MUST BE MADE.
Certain information contained in this Prospectus summarizes, is
based upon, or refers to information and financial statements contained in
one or more Incorporated Documents; accordingly, such information
contained herein is qualified in its entirety by reference to such
documents and should be read in conjunction therewith.
____________________
<PAGE>
TABLE OF CONTENTS
Page
Page
Available Information . . . . 3 Dividends and Price Range of
Incorporation of Certain CMS Energy Common Stock . . . . . 7
Documents by Reference . . . 3 Selected Consolidated Financial
The Company . . . . . . . . . 5 Data . . . . . . . . . . . . . . . 8
Offered Securities . . . . . . 6 Description of Capital Stock . . . . 9
Use of Proceeds . . . . . . . 6 Legal Opinions . . . . . . . . . . . 14
Experts . . . . . . . . . . . . . . . 14
____________________
<PAGE>
<PAGE> 5
THE COMPANY
CMS Energy, 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 CMS Energy'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.
CMS Energy conducts its principal operations through the following
five business segments: (i) electric utility operations; (ii) natural gas
utility operations; (iii) gas transmission 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.
At December 31, 1994, CMS Energy had total consolidated assets of
$7,384 million. CMS Energy'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.
On May 30, 1995, Nomeco Oil & Gas Co. ("NOMECO"), an indirect
wholly-owned subsidiary of CMS Energy, executed a non-binding letter of
intent which calls for a newly formed subsidiary of CMS Energy to merge
with and into Terra Energy, Ltd., a Michigan corporation ("Terra"),
thereby making Terra a wholly-owned subsidiary of CMS Energy. Terra is a
privately held corporation primarily engaged in U.S. gas and oil
exploration and production and activities related thereto. Terra's
principal office is located at Traverse City, Michigan. It is possible
that this transaction may be completed in the future. In such event, the
Company intends to use shares of CMS Energy Common Stock registered
hereunder for such acquisition. The letter of intent contemplates that
the holders of Terra common stock would receive shares of CMS Energy
Common Stock with an aggregate market value of approximately $58.5
million. If consummated, this acquisition would not be material to
CMS Energy.
The foregoing information concerning CMS Energy and its subsidiaries
does not purport to be comprehensive. For additional information
concerning CMS Energy 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 Incorporated Documents. See "Incorporation of Certain
Documents by Reference."
OFFERED SECURITIES
The securities of CMS Energy which may be offered from time to time
by this Prospectus consist of up to 3,000,000 shares of CMS Energy Common
Stock, which CMS Energy proposes to issue in connection with acquisitions
of other businesses or properties. The CMS Energy Common Stock to be
issued hereunder will be freely transferable under the Securities Act of
1933, as amended (the "Securities Act"), except for shares of CMS Energy
Common Stock issued in connection with an acquisition to any person deemed
to be an affiliate of any acquired company for purposes of Rule 145 under
the Securities Act at the time of any such acquisition. Generally, such
affiliates may not sell their shares of CMS Energy Common Stock acquired
in connection with an acquisition except pursuant to an effective
registration statement under the Securities Act covering such shares, or
in compliance with Rule 145 under the Securities Act or another applicable
exemption from the registration requirements of the Securities Act.
The consideration for any acquisition may consist of cash, notes or
other evidences of debt, assumptions of liabilities, equity securities, or
a combination thereof, as determined from time to time by negotiations
between CMS Energy and the owners of businesses or properties to be
acquired. CMS Energy will attempt to make acquisitions which are
complementary to its present operations. In general, the terms of any
acquisitions will be determined by direct negotiations between the
representatives of CMS Energy and the owners of the businesses or
properties to be acquired or, in the case of entities more widely held,
through exchange offers to stockholders or documents soliciting approval
of statutory mergers, consolidations or sales of assets. Underwriting
discounts or commissions will generally not be paid by CMS Energy.
However, under some circumstances, the Company may issue CMS Energy Common
Stock covered by this Prospectus to pay brokers' commissions incurred in
connection with acquisitions.
USE OF PROCEEDS
This Prospectus relates to shares of CMS Energy Common Stock which
may be offered and issued by the Company from time to time in the
acquisition of other businesses or properties. Other than the business or
properties acquired, there will be no proceeds to the Company from these
offerings.
____________________
<PAGE>
<PAGE> 7
DIVIDENDS AND PRICE RANGE OF CMS ENERGY COMMON STOCK
CMS Energy Common Stock is listed on the New York Stock Exchange
under the symbol "CMS". CMS Energy has paid dividends on its Common Stock
each year since its inception except 1988. Future dividends will depend
upon CMS Energy's earnings, financial condition and other factors.
Reference is made to "Description of Capital Stock" regarding limitations
upon payment of dividends on the Company's Common Stock.
The following table indicates the high and low sales prices of the
CMS Energy Common Stock for the calendar quarters indicated, as reported
in The Wall Street Journal under "New York Stock Exchange Composite
Transactions," and the quarterly cash dividends declared per share of the
CMS Energy Common Stock, for the calendar quarters indicated.
Common Stock
Calendar Period High Low Dividend
- --------------- ------- ------- --------
1990
First Quarter . . . . . . . . . . . . . . . $38 1/2 $31 3/8 $.10
Second Quarter . . . . . . . . . . . . . . . 32 1/2 27 1/4 .10
Third Quarter . . . . . . . . . . . . . . . 33 25 1/2 .10
Fourth Quarter . . . . . . . . . . . . . . . 28 3/4 24 7/8 .12
1991
First Quarter . . . . . . . . . . . . . . . $33 $26 1/2 $.12
Second Quarter . . . . . . . . . . . . . . . 30 3/4 23 3/4 .12
Third Quarter . . . . . . . . . . . . . . . 25 7/8 18 .12
Fourth Quarter . . . . . . . . . . . . . . . 19 3/4 16 5/8 .12
1992
First Quarter . . . . . . . . . . . . . . . $22 3/4 $17 7/8 $.12
Second Quarter . . . . . . . . . . . . . . . 21 7/8 14 7/8 .12
Third Quarter . . . . . . . . . . . . . . . 17 1/2 15 1/4 .12
Fourth Quarter . . . . . . . . . . . . . . . 18 3/8 16 3/4 .12
1993
First Quarter . . . . . . . . . . . . . . . $20 7/8 $17 7/8 $.12
Second Quarter . . . . . . . . . . . . . . . 25 1/2 19 1/2 .12
Third Quarter . . . . . . . . . . . . . . . 27 1/2 24 7/8 .18
Fourth Quarter . . . . . . . . . . . . . . . 27 1/8 23 .18
1994
First Quarter . . . . . . . . . . . . . . . $25 $21 1/8 $.18
Second Quarter . . . . . . . . . . . . . . . 22 7/8 19 5/8 .18
Third Quarter . . . . . . . . . . . . . . . 23 3/8 20 5/8 .21
Fourth Quarter . . . . . . . . . . . . . . . 23 1/4 20 7/8 .21
1995
First Quarter . . . . . . . . . . . . . . . $24 3/4 $22 5/8 $.21
Second Quarter (through June 2, 1995). . . . 24 7/8 22 1/2 .21
On June 2, 1995, the closing price of the CMS Energy Common Stock on
The New York Stock Exchange was $24 3/4 per share. On June 2, 1995, there
were 61,986 record holders of CMS Energy Common Stock.<PAGE>
<PAGE> 8
SELECTED CONSOLIDATED FINANCIAL DATA
The following is a summary of certain financial information of the
Company and its consolidated subsidiaries and is qualified in its entirety
by, and should be read in conjunction with, the detailed information and
consolidated financial statements, including notes thereto, included in
the Company's Annual Report on Form 10-K for the year ended December 31,
1994, and its Quarterly Report on Form 10-Q for the quarter ended March
31, 1995. The unaudited consolidated interim period financial statement
includes, in the opinion of the Company's management, all adjustments
necessary to present fairly the data for such period. The results of
operations for interim periods are not necessarily indicative of results
to be achieved for full fiscal years..
<TABLE>
<CAPTION>
Three Months Ended
Ended March 31, Year Ended December 31,
------------------ -------------------------------------------
1995 1994 1994 1993 1992 1991 1990
------ ------ ------ ------ ------ ------ ------
(unaudited) (In Millions, Except Per Share Amounts)
<S> <C> <C> <C> <C> <C> <C> <C>
Income Statement Data:
Operating Revenue . . . . . . . . . . . . . . . . . $ 1,119 $ 1,142 $ 3,619 $ 3,482 $ 3,146 $ 2,998 $ 3,028
Pretax operating income . . . . . . . . . . . . . . $ 206 $ 175 $ 504 $ 439 $ 231 $ 261 $ 506
Net income (loss) (1) . . . . . . . . . . . . . . . $ 86 $ 78 $ 179 $ 155 $ (297) $ (276) $ (494)
Earnings (loss) per average common share (1) . . . . $ .99 $ .92 $ 2.09 $ 1.90 $ (3.72) $ (3.44) $ (6.07)
Average common shares outstanding
(in thousands) . . . . . . . . . . . . . . . . . . 86,918 85,302 85,888 81,251 79,877 79,988 81,339
Cash dividends declared per common share . . . . . . $ .21 $ .18 $ .78 $ .60 $ .48 $ .48 $ .42
Balance Sheet Data:
Net plant and property . . . . . . . . . . . . . . . $ 4,826 $ 4,602 $ 4,814 $ 4,583 $ 4,326 $ 4,121 $ 4,033
Total assets . . . . . . . . . . . . . . . . . . . . $ 7,344 $ 6,825 $ 7,384 $ 6,964 $ 6,848 $ 6,194 $ 7,917
Long-term debt, excluding current
maturities . . . . . . . . . . . . . . . . . . . . $ 2,787 $ 2,376 $ 2,709 $ 2,405 $ 2,725 $ 1,941 $ 3,321
Notes payable . . . . . . . . . . . . . . . . . . . $ 135 -- $ 339 $ 259 $ 215 $ 708 $ 337
Other liabilities . . . . . . . . . . . . . . . . . $ 2,857 $ 3,051 $ 2,873 $ 3,171 $ 3,018 $ 2,322 $ 2,701
Preferred stock of subsidiary . . . . . . . . . . . $ 356 $ 356 $ 356 $ 163 $ 163 $ 163 $ 156
Common stockholders' equity . . . . . . . . . . . . $ 1,209 $ 1,042 $ 1,107 $ 966 $ 727 $ 1,060 $ 1,420
<FN>
(1) Amount in 1991 included an extraordinary loss of $14 million, after tax or $.18 per average common share.
</TABLE>
<PAGE>
<PAGE> 9
DESCRIPTION OF CAPITAL STOCK
The following outline of certain rights of the holders of CMS Energy
capital stock does not purport to be complete and is qualified in its
entirety by express reference to Article III of the Restated Articles of
Incorporation of CMS Energy (the "Articles of Incorporation"), the
CMS Energy Indenture dated as of September 15, 1992, as amended and
supplemented (the "Senior Debt Indenture") to NBD Bank, N.A., as Trustee,
the Credit Agreement dated as of July 29, 1994 (the "Credit Facility")
among CMS Energy, Citibank, N.A. and Union Bank, as co-agents, and certain
banks named therein, and CMS Energy's Indenture dated as of January 15,
1994 (the "GTN Indenture") to The Chase Manhattan Bank, N.A., as Trustee,
copies of which are filed as exhibits to the Registration Statement of
which this Prospectus is a part.
General
The Articles of Incorporation currently authorize 320 million shares
of capital stock, of which 250 million are shares of CMS Energy Common
Stock, par value $.01 per share, 60 million are shares of Class G Common
Stock, no par value ("Class G Common Stock"), and 10 million are shares of
preferred stock, $.01 par value ("Preferred Stock"). The CMS Energy
Common Stock and the Class G Common Stock are together referred to herein
as the "Common Stock." As of June 2, 1995, 88,079,758 shares of
CMS Energy Common Stock were issued and outstanding and there were no
shares of Preferred Stock or Class G Common Stock issued or outstanding.
The outstanding shares of the CMS Energy Common Stock are fully paid and
non-assessable, and the additional CMS Energy Common Stock offered hereby,
when issued and paid for, will be fully paid and non-assessable.
The shares of Common Stock may be issued from time to time as the
Board of Directors shall determine for such consideration as shall be
fixed by the Board of Directors.
Class G Common Stock is intended to reflect the separate performance
of the gas distribution, storage and transportation businesses conducted
by Consumers and Michigan Gas Storage, a subsidiary of Consumers (such
businesses, collectively, will be attributed to the "Consumers Gas
Group"). Effective January 1, 1995, the management and operations of the
Consumers Gas Group were reorganized as a business unit separate from the
electric utility operations of the Consumers. The existing CMS Energy
Common Stock will continue to be outstanding and, if and after any shares
of Class G Common Stock were issued by CMS Energy, will reflect the
performance of all of the businesses of CMS Energy and its subsidiaries,
including the business of the Consumers Gas Group, except for the interest
in the Consumers Gas Group attributable to the outstanding shares of
Class G Common Stock. 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 or for
attribution to the Consumers Gas Group, 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.
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 specific terms of Preferred Stock will be
described in a prospectus supplement relating thereto if, and when,
issued. Unless otherwise provided in a prospectus supplement, the holder
of any shares of any series of Preferred Stock shall be entitled to vote
in the election of directors or in respect of any other matter except as
may be required by the Michigan Business Corporation Act, as amended.
Unless otherwise provided in a prospectus supplement, holders of Preferred
Stock will not have any preemptive rights to subscribe for or purchase any
additional shares of the capital stock of CMS Energy of any class now or
hereafter authorized, or any Preferred Stock or other securities or other
right or option convertible into or exchangeable for or entitling the
holder or owner to subscribe for or purchase any shares of capital stock.
The future issuance of Preferred Stock may have the effect of delaying,
deterring or preventing a change in control of CMS Energy.
Dividend Rights and Policy
Dividends on the CMS Energy Common Stock will be paid at the
discretion of the Board of Directors based primarily upon the earnings and
financial condition of CMS Energy, including the Consumers Gas Group,
except for the interest in the Consumers Gas Group attributable to the
outstanding shares of the Class G Common Stock, and other factors. The
holders of the Company's Common Stock are entitled to receive dividends
when and as declared by the Board of Directors of the Company out of funds
legally available therefor, subject to the terms of any CMS Energy
Preferred Stock which may in the future be issued and at the time be
outstanding. CMS Energy, 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.
CMS Energy is a legal entity separate and distinct from its various
subsidiaries. As a holding company with no significant operations of its
own, the principal sources of its funds are dividends or other
distributions from its operating subsidiaries, in particular, Consumers,
borrowings and sales of equity. The ability of Consumers and other
subsidiaries of CMS Energy to pay dividends or make distributions to
CMS Energy, and accordingly, the ability of CMS Energy to pay dividends on
its capital stock will depend on the earnings, financial requirements,
contractual restrictions of the subsidiaries of CMS Energy, in particular,
Consumers, and other factors. See "Primary Source of Funds of CMS Energy;
Restrictions on Sources of Dividends" below.
There are restrictions on CMS Energy's ability to pay dividends
contained in its Credit Facility, the Senior Debt Indenture and the GTN
Indenture.
The Credit Facility, provides that CMS Energy will not, and will not
permit certain of its subsidiaries, directly or indirectly, to (i) declare
or pay any cash dividend or distribution on the capital stock of
CMS Energy or such subsidiaries, or (ii) purchase, redeem, retire or
otherwise acquire for value any such capital stock (a" Restricted
Payment"), unless: (1) no event of default under the Credit Facility, or
event that with the lapse of time or giving of notice would constitute
such an event of default, has occurred and is continuing, and (2) after
giving effect to any such Restricted Payment, the aggregate amount of all
such Restricted Payments, since September 30, 1993 shall not have exceeded
the sum of: (a) $120,000,000, (b) 100% of CMS Energy's consolidated net
income (as defined in the Senior Debt Indenture) since September 30, 1993
to the end of the most recent fiscal quarter ending at least 45 days prior
to the date of such Restricted Payment (or, in case such sum shall be a
deficit, minus 100% of the deficit), and (c) any net proceeds (as defined
in the Senior Debt Indenture) received by CMS Energy for the issuance or
sale of its capital stock subsequent to September 30, 1993. At March 31,
1995, CMS Energy could pay cash dividends of $492 million pursuant to this
restriction.
The First and Second Supplemental Indentures to the Senior Debt
Indenture, pursuant to which CMS Energy's Series A Senior Deferred Coupon
Notes due October 1, 1997 and Series B Senior Deferred Coupon Notes due
October 1, 1999 were issued, provide that so long as any of such Notes are
outstanding, CMS Energy will not, and will not permit certain of its
subsidiaries, directly or indirectly, to make a Restricted Payment,
unless: (1) no event of default under the Senior Debt Indenture, or event
that with the lapse of time or giving of notice would constitute such an
event of default, has occurred and is continuing, and (2) after giving
effect to any such Restricted Payment, the aggregate amount of all such
Restricted Payments since September 30, 1992 shall not have exceeded the
sum of: (a) $40,000,000, (b) 100% of CMS Energy's consolidated net income
(as defined in the Senior Debt Indenture) since September 30, 1992 to the
end of the most recent fiscal quarter ending at least 45 days prior to the
date of such Restricted Payment (or, in case such sum shall be a deficit,
minus 100% of the deficit), and (c) any net proceeds (as defined in the
Senior Debt Indenture) received by CMS Energy for the issuance or sale of
its capital stock subsequent to September 15, 1992. At March 31, 1995,
CMS Energy could pay cash dividends of $499 million pursuant to this
restriction.
The GTN Indenture provides that, so long as any of the General Term
Notes, Series A (the "GTNs") issued thereunder are outstanding and are
rated below BBB- by Standard & Poor's or by Duff & Phelps, CMS Energy will
not, and will not permit certain of its subsidiaries, directly or
indirectly, to make any Restricted Payments, if at any time CMS Energy or
such subsidiary makes such Restricted Payment: (1) an Event of Default
(as defined in the GTN Indenture), or an event that with the lapse of time
or the giving of notice or both would constitute such an Event of Default,
has occurred and is continuing (or would result therefrom), or (2) the
aggregate amount of such Restricted Payment and all other Restricted
Payments made since September 30, 1993, would exceed the sum of: (a)
$120,000,000 plus 100% of consolidated net income from September 30, 1993
to the end of the most recent fiscal quarter ending at least 45 days prior
to the date of such Restricted Payment (or, in case such sum shall be a
deficit, minus 100% of the deficit) and (b) the aggregate net proceeds
received by CMS Energy from the issue or sale of or contribution with
respect to its capital stock after September 30, 1993. At March 31, 1995,
CMS Energy could pay cash dividends of $492 million pursuant to this
restriction.
The foregoing provisions do not prohibit: (i) dividends or other
distributions paid by CMS Energy in respect of the capital stock issued in
connection with the acquisition of any business or assets by CMS Energy
where such payments are payable solely from the net earnings of such
business or assets; (ii) any purchase or redemption of capital stock made
by exchange for, or out of the proceeds of the substantially concurrent
sale of, capital stock; (iii) dividends paid within 60 days after the date
of declaration thereof if at such date of declaration such dividends would
have complied with the aforementioned limitations; or (iv) payments
pursuant to the tax sharing agreement among CMS Energy and its
subsidiaries.
In addition, Michigan law prohibits payment of 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 its total assets would be
less than the sum of its total liabilities plus, unless the articles
permit otherwise, the amount that would be needed, if CMS Energy were to
be dissolved at the time of the distribution, to satisfy the preferential
rights upon dissolution of shareholders whose preferential rights are
superior to those receiving the distribution. CMS Energy's net assets
available for payment of dividends under the Michigan Business Corporation
Act at March 31, 1995 were $1,207 million.
Voting Rights
The holders of CMS Energy Common Stock will vote with the holders of
Class G 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 holder of Common Stock is entitled to one vote for each share of
Common Stock held by such holder on each matter voted upon by the
shareholders. Such right to vote is not cumulative. A majority of the
votes cast by the holders of shares entitled to vote thereon is sufficient
for the adoption of any question presented, except that certain provisions
of the Articles of Incorporation relating to special shareholder meetings,
the removal, indemnification and liability of the Board of Directors and
the requirements for amending these provisions may not be amended,
altered, changed or repealed unless such amendment, alteration, change or
repeal is approved by the affirmative vote of at least 75% of the
outstanding shares entitled to vote thereon.
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 of 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 vote or consent of the holders of a majority of all the shares
of either class of Common Stock then outstanding, 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 entity 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. In the
event that there is more than one class of Common Stock, 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.
Preemptive Rights
Holders of Common Stock have no preemptive rights to subscribe for
or purchase any additional shares of the capital stock of CMS Energy of
any class now or hereafter authorized, or Preferred Stock, bonds,
debentures, or other obligations or rights or options convertible into or
exchangeable for or entitling the holder or owner to subscribe for or
purchase any shares of capital stock, or any rights to exchange shares
issued for shares to be issued.
Liquidation Rights
In the event of the dissolution, liquidation or winding up of the
Company, whether voluntary or involuntary, after payment or provision for
payment of the debts and other liabilities of the Company 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 shall be entitled to receive, on a per share
basis, the same portion of all of the assets of the Corporation remaining
for distribution to the holders of Common Stock, regardless of whether or
not any of such assets were attributed to the Consumers Gas Group.
Neither the merger or consolidation of the Company into or with any other
corporation, nor the merger or consolidation of any other corporation into
or with the Company nor any sale, transfer or lease of all or any part of
the assets of the Company, shall be deemed to be a dissolution,
liquidation or winding up.
Because the Company has subsidiaries which have debt obligations and
other liabilities of their own, the Company's rights and the rights of its
creditors and its stockholders to participate in the distribution of
assets of any subsidiary upon the latter's liquidation or recapitalization
will be subject to prior claims of the subsidiary's creditors, except to
the extent that the Company may itself be a creditor with recognized
claims against the subsidiary.
Transfer Agent and Registrar
CMS Energy Common Stock is transferrable at Consumers Power Company,
212 W. Michigan Avenue, Jackson, MI 49201. The registrar for CMS Energy
Common Stock is Consumers Power Company.
Primary Source of Funds for the Company's Common Stock; Restrictions on
Sources of Dividends
The ability of CMS Energy to pay (i) dividends on its capital stock
and (ii) its indebtedness 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 upon its revenues, earnings and
other factors. Consumers' revenues and earnings will depend substantially
upon rates authorized by the Michigan Public Service Commission (the
"MPSC").
Consumers' ability to pay dividends is restricted by its First
Mortgage Bond Indenture (the"Mortgage Indenture") and its Articles of
Incorporation (the "Articles"). The Mortgage Indenture provides that
Consumers can only pay dividends on its common stock out of retained
earnings accumulated subsequent to September 30, 1945, provided that upon
such payment, there shall remain of such retained earnings an amount
equivalent to any deficiency in maintenance and replacement expenditures
as compared with maintenance and replacement requirements since December
31, 1945. Because of restrictions in its Articles and Mortgage Indenture,
Consumers was prohibited from paying dividends on its common stock from
June 1991 to December 31, 1992. However, as of December 31, 1992,
Consumers effected a quasi-reorganization in which Consumers' accumulated
deficit of $574 million was eliminated against other paid-in capital.
With the accumulated deficit eliminated, Consumers satisfied the
requirements under its Mortgage Indenture and resumed paying dividends on
its common stock in May 1993.
Consumers' Articles also provide two restrictions on its payment of
dividends on its common stock. First, prior to the payment of any common
stock dividend, Consumers must reserve retained earnings after giving
effect to such dividend payment of at least (i) $7.50 per share on all
then outstanding shares of its preferred stock; (ii) in respect to its
Class A Preferred Stock, 7.5% of the aggregate amount established by its
Board of Directors to be payable on the shares of each series thereof in
the event of involuntary liquidation of Consumers; and (iii) $7.50 per
share on all then outstanding shares of all other stock over which its
preferred stock and Class A Preferred Stock do not have preference as to
the payment of dividends and as to assets. Second, dividend payments
during the 12 month period ending with the month the proposed payment is
to be paid are limited to: (i) 50% of net income available for the
payment of dividends during the base period (hereinafter defined) if the
ratio of common stock and surplus to total capitalization and surplus for
12 consecutive calendar months within the 14 calendar months immediately
preceding the proposed dividend payment (the "base period"), adjusted to
reflect the proposed dividend, is less than 20%; and (ii) 75% of net
income available for the payment of dividends during the base period if
the ratio of common stock and surplus to total capitalization and surplus
for the base period, adjusted to reflect the proposed dividend, is at
least 20% but less than 25%.
Consumers' Articles also prohibit the payment of cash dividends on
its common stock if Consumers is in arrears on preferred stock dividend
payments.
In addition, Michigan law prohibits payment of a dividend if, after
giving it effect, Consumers would not be able to pay its debts as they
become due in the usual course of business, or its total assets would be
less than the sum of its total liabilities plus, unless the articles
permit otherwise, the amount that would be needed, if Consumers were to be
dissolved at the time of the distribution, to satisfy the preferential
rights upon dissolution of shareholders whose preferential rights are
superior to those receiving the distribution. Consumers' net assets
available for payment of dividends under the Michigan Business Corporation
Act at March 31, 1995 were $1,513 million.
Under the most restrictive of these conditions, at March 31, 1995,
$69.9 million of Consumers' retained earnings were available to pay cash
dividends on its common stock. Currently it is Consumers' policy to pay
annual dividends equal to 80% of its annual consolidated net income.
Consumers' Board of Directors reserves the right to change this policy at
any time.
Consumers paid dividends on its common stock of $16.0 million on
February 22, 1994, $65.6 million on May 20, 1994, $31.0 million on August
19, 1994, $36.0 million on November 4, 1994, $27.4 million on December 20,
1994 and $69.9 million on May 19, 1995.
LEGAL OPINIONS
An opinion as to the legality of the CMS Energy Common Stock will be
rendered for CMS Energy by Denise M. Sturdy, Esq., Assistant General
Counsel of CMS Energy.
EXPERTS
The consolidated financial statements and schedule of CMS Energy as
of December 31, 1994 and 1993, and for each of the five years in the
period ended December 31, 1994 incorporated by reference in this
Prospectus, 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.
With respect to the unaudited interim consolidated financial
information for the quarterly periods ended March 31, 1994 and 1995,
incorporated by reference in this Prospectus, 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 a "part" of
the registration statement prepared or certified by the accountants within
the meaning of Sections 7 and 11 of the Securities Act.
Future consolidated financial statements of CMS Energy and the
reports thereon of Arthur Andersen LLP also will be incorporated by
reference in this Prospectus 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.
<PAGE>
<PAGE> II-1
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 20. 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 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 IX of the 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) any transaction from which the director derived an improper personal
benefit. No amendment to or repeal of this Article IX, 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 X of the 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 X 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 X by the shareholders
of the Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or
modification.
Sections 561 through 571 of the Michigan Business Corporation Act provide
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, executors, 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 Consumers or of Consumers'
subsidiaries and Consumers' officers and directors are indemnified against
such losses by reason of their being or having been directors or officers
of another corporation, partnership, joint venture, trust or other
enterprise at Consumers' request. In addition, Consumers 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.
<PAGE>
<PAGE> II-5
Item 21. Exhibits.
Exhibit No.
(3)(i) - Restated Articles of Incorporation of CMS Energy, as
filed with the Michigan Department of Commerce on
June 6, 1995.
(3)(ii) - Copy of the By-Laws of CMS Energy. (Designated in
CMS Energy's Form 10-K for the year ended December 31,
1994, File No. 1-9513, as Exhibit (3)(b).)
(4)(i) - 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).)
(4)(i)(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).)
(4)(i)(B) - 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).)
(4)(ii) - Credit Agreement dated as of July 29, 1994, among
CMS Energy Corporation, the Banks, the Co-Agents, the
Documentation Agent, the Operational Agent and the Co-
Manager, all as defined 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)(iii) - Indenture dated as of January 15, 1994 between
CMS Energy and The Chase Manhattan Bank, National
Association, as Trustee. (Designated in CMS Energy's
Form 8-K dated March 29, 1994, File No. 1-9513, as
Exhibit (4)(a).)
(4)(iii)(A) - First Supplemental Indenture dated as of January 20,
1994 between CMS Energy and The Chase Manhattan Bank,
National Association, as Trustee. (Designated in
CMS Energy's Form 8-K dated March 29, 1994, File No.
1-9513, as Exhibit (4)(b).)
(5) - Opinion of Counsel.
(15) - Letter on unaudited interim financial information.
(21) - Subsidiaries of the registrant. (Designated in
CMS Energy's Form 10-K for the year ended December 31,
1994, File No. 1-9513 as Exhibit (21)(a).)
(23)(i) - Consent of Arthur Andersen LLP.
(23)(ii) - Consent of Counsel is contained in Exhibit 5 hereto.
(24) - Powers of Attorney.
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.
<PAGE>
<PAGE> II-6
Item 22. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933; (ii) To reflect in the prospectus any facts or
events arising after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which, individually or
in the aggregate, represent a fundamental change in the information set
forth in the 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; 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 by
the registrant pursuant to section 13 or section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
registration statement.
(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.
(b) The undersigned registrant hereby undertakes 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
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.
(c) The undersigned registrant hereby undertakes as follows:
prior to any public reoffering of the securities registered hereunder
through use of a prospectus which is a part of this registration
statement, by any person or party who is deemed to be an underwriter
within the meaning of Rule 145(c), the issuer undertakes that such
reoffering prospectus will contain the information called for by the
applicable registration form with respect to reofferings by persons who
may be deemed underwriters, in addition to the information called for by
the other Items of the applicable form.
(d) The undersigned registrant undertakes that every prospectus
(i) that is filed pursuant to the immediately preceding paragraph or
(ii) that purports to meet the requirements of Section 10(a)(3) of the
Securities Act and is used in connection with the offering of securities
subject to Rule 415 will be filed as a part of an amendment to the
registration statement and will not be used until such amendment is
effective, and that, for purposes 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 bona fide offering thereof.
(e) 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 20 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.
(f) The undersigned registrant hereby undertakes to respond to
requests for information that is incorporated by reference into the
prospectus pursuant to Items 4, 10(b), 11, or 13 of this Form, within one
business day of receipt of such request, and to send the incorporated
documents by first class mail or other equally prompt means. This
includes information contained in documents filed subsequent to the
effective date of the registration statement through the date of
responding to the request.
(g) The undersigned registrant hereby undertakes to supply by
means of a post-effective amendment all information concerning a
transaction, and the company being acquired involved therein, that was not
the subject of and included in the registration statement when it became
effective, except where the transaction in which the securities being
offered pursuant to this registration statement (i) would itself qualify
for an exemption from Section 5 of the Securities Act of 1993, absent the
existence of other similar (prior or subsequent) transactions, and
(ii) would not be material to the Registrant.
_______________________________________<PAGE>
<PAGE> II-8
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant 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 6th day of June, 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 by the following persons in the
capacities indicated on the 6th day of June, 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,
/s/ A M Wright Chief 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)
<PAGE>
<PAGE> II-9
Name Title
------ --------
* Director
-------------------------------
(S. Kinnie Smith, Jr.)
* Director
-------------------------------
(Victor J. Fryling)
* Director
-------------------------------
(James J. Duderstadt)
* Director
-------------------------------
(Kathleen R. Flaherty)
* Director
-------------------------------
(Earl D. Holton)
* Director
-------------------------------
(Lois A. Lund)
* Director
-------------------------------
(Frank H. Merlotti)
Director
-------------------------------
(William U. Parfet)
* Director
-------------------------------
(Percy A. Pierre)
* Director
-------------------------------
(Kenneth Whipple)
* Director
-------------------------------
(John B. Yasinsky)
*By /s/ A M Wright
----------------------------
Alan M. Wright
Attorney-in-fact
<PAGE>
<PAGE>
EXHIBIT NO. (3)(i)<PAGE>
<PAGE>
EXHIBIT NO. (3)(i)
STATE OF MICHIGAN
MICHIGAN DEPARTMENT OF COMMERCE
CORPORATION DIVISION
LANSING, MICHIGAN
RESTATED ARTICLES OF INCORPORATION
(Profit Corporation)
Corporation Identification Number 485-283
These Restated Articles of Incorporation are executed pursuant
to the provisions of Section 641 through 651, Act 284, Public Acts of
1972, as amended, (the "Act"). These Restated Articles of Incorporation
were duly adopted on June 5, 1995 by the Board of Directors of CMS Energy
Corporation, as authorized by the shareholders on March 21, 1995, in
accordance with provisions of Sections 611(2) and 642 of the Act. These
Restated Articles of Incorporation have been restated to insert in Article
III, Section 6 DEFINITIONS, the number of shares determined to be Retained
Interest Shares as determined by the Board of Directors on June 5, 1995.
The present name of the Corporation is CMS Energy Corporation.
There are no former names.
The date of filing the original Articles of Incorporation in
Michigan was February 26, 1987.
RESTATED ARTICLES OF INCORPORATION
The following Restated Articles of Incorporation supersede the
original Articles as amended and shall be the Articles of Incorporation of
CMS Energy Corporation.
ARTICLE I
The name of the corporation is CMS Energy Corporation
(hereinafter called the "Corporation").
ARTICLE II
The purpose or purposes for which the Corporation is organized
is to engage in any activity within the purposes for which corporations
may be organized under the Business Corporation Act of Michigan.
ARTICLE III
The total number of shares of all classes of stock which the
Corporation shall have authority to issue is 320,000,000, of which
10,000,000 shares, par value $.01 per share, are of a class designated
Preferred Stock ("Preferred Stock"), 250,000,000 shares, par value $.01
per share, are of a class designated Common Stock ("CMS Energy Common
Stock"), and 60,000,000 shares, no par value, are of a class designated
Class G Common Stock ("Class G Common Stock"). The CMS Energy Common Stock
and the Class G Common Stock are hereinafter collectively referred to as
the "Common Stock".
The statement of the designations and the voting and other
powers, preferences and rights, and the qualifications, limitations or
restrictions thereof, of the Common Stock and of the Preferred Stock is as
follows:
PREEMPTIVE RIGHTS
The holders of shares of Preferred Stock or of Common Stock
shall have no preemptive rights to subscribe for or purchase any
additional issues of shares of the capital stock of the Corporation of any
class now or hereafter authorized or any Preferred Stock, bonds,
debentures, or other obligations or rights or options convertible into or
exchangeable for or entitling the holder or owner to subscribe for or
purchase any shares of capital stock, or any rights to exchange shares
issued for shares to be issued.
PREFERRED STOCK
The shares of Preferred Stock may be issued from time to time
in one or more series with such relative rights and preferences of the
shares of any such series as may be determined by the Board of Directors.
The Board of Directors is authorized to fix by resolution or resolutions
adopted prior to the issuance of any shares of each particular series of
Preferred Stock, the designation, powers, preferences and relative,
participating, optional and other rights, and the qualifications,
limitations and restrictions thereof, if any, of such series, including,
but without limiting the generality of the foregoing, the following:
(a) The rate of dividend, if any;
(b) The price at and the terms and conditions upon
which shares may be redeemed;
(c) The rights, if any, of the holders of shares of the
series upon voluntary or involuntary liquidation, merger,
consolidation, distribution or sale of assets, dissolution or
winding up of the Corporation;
(d) Sinking fund or redemption or purchase provisions,
if any, to be provided for shares of the series;
(e) The terms and conditions upon which shares may be
converted into shares of other series or other capital stock,
if issued with the privilege of conversion; and
(f) The voting rights in the event of default in the
payment of dividends or under such other circumstances and
upon such conditions as the Board of Directors may determine.
No holder of any shares of any series of Preferred Stock shall be entitled
to vote in the election of directors or in respect of any other matter
except as may be required by the Michigan Business Corporation Act, as
amended, or as is permitted by the resolution or resolutions adopted by
the Board of Directors authorizing the issue of such series of Preferred
Stock.
COMMON STOCK
The shares of Common Stock may be issued from time to time as
the Board of Directors shall determine for such consideration as shall be
fixed by the Board of Directors. Each share of Common Stock of the
Corporation shall be equal to every other share of said stock in every
respect, except as otherwise provided in this Common Stock Division of
Article III. Capitalized terms in this Common Stock Division of Article
III have the respective meanings set forth in Section 6 of this Common
Stock Division of Article III. The relative voting, distribution,
dividend, liquidation and other rights and limitations of the CMS Energy
Common Stock and Class G Common Stock are as follows:
(1) Dividend Rights. Subject to the express terms of any
outstanding series of Preferred Stock, dividends or distributions may be
paid in cash or otherwise upon the CMS Energy Common Stock and the Class G
Common Stock out of the assets of the Corporation in the relationship and
upon the terms provided for below with respect to each such class:
(a) Dividends on CMS Energy Common Stock. Dividends and
distributions on the CMS Energy Common Stock may be declared
and paid only out of the assets of the Corporation legally
available therefor.
(b) Dividends on Class G Common Stock. Dividends and
distributions on the Class G Common Stock may be declared and
paid only out of the lesser of (i) the assets of the
Corporation legally available therefor and (ii) the Available
Class G Dividend Amount.
(c) Discrimination between CMS Energy Common Stock and
Class G Common Stock. The Board of Directors, subject to
Sections l(a) and l(b), may, in its sole discretion, declare
dividends or distributions payable 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, notwithstanding the amounts of
assets available for dividends or distributions on each class,
the respective voting rights of each class, the amounts of
prior dividends declared on each class or any other factor.
(2) Exchange or Redemption. Shares of Class G Common Stock are
subject to exchange or redemption upon the terms provided below:
(a) Exchange or Redemption of Class G Common Stock.
(i) In the event of the Disposition, in one
transaction or a series of related transactions, by the
Corporation of all or substantially all of the
properties and assets attributed to the Consumers Gas
Group (other than in connection with the Disposition by
the Corporation 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 the Corporation referred to in Section 4)
to any person, entity or group (other than (A) the
holders of all outstanding shares of Class G Common
Stock on a pro rata basis or (B) any person, entity or
group in which the Corporation, directly or indirectly,
owns a majority equity interest), the Corporation
shall, on or prior to the first Business Day following
the 90th day following the consummation of such
Disposition, 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 the
Corporation of such Disposition.
For purposes of this Section 2(a)(i):
(x) as of any date, "substantially all of the
properties and assets attributed to the Consumers Gas
Group" shall mean a portion of such properties and
assets (A) that represents at least 80% of the then-
current 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 the Corporation (calculated on a
pro forma basis to include revenues derived from any of
such properties and assets acquired during such period)
derived from properties and assets attributed to the
Consumers Gas Group during such periods;
(y) if immediately after any event, the
Corporation, directly or indirectly, owns less than a
majority equity interest in any person, entity or group
in which the Corporation, 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; and
(z) 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.
(ii) The Board of Directors may, by a majority
vote of the directors then in office, at any time
declare that each of the outstanding shares of Class G
Common Stock shall be exchanged, on an Exchange Date
set forth in a notice to holders of Class G Common
Stock pursuant to Section 2(b)(i), for 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 the Corporation of such exchange.
(iii) At any time on or 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 the Corporation ("Gas
Group Subsidiary"), the Board of Directors may, in its
sole discretion and by a majority vote of the directors
then in office, provided that there are assets of the
Corporation legally available therefor, declare that
all of the outstanding shares of Class G Common Stock
shall be exchanged on an Exchange Date set forth in a
notice to holders of Class G Common Stock pursuant to
Section 2(b)(i), for a number of the outstanding shares
of common stock of the Gas Group Subsidiary equal to
the product of the Gas Group Fraction and the number of
all outstanding shares of common stock of the Gas Group
Subsidiary, on a pro rata basis, each of which shall,
upon such issuance, be fully paid and nonassessable.
(iv) After any Exchange Date on which all
outstanding shares of Class G Common Stock were
exchanged, any share of Class G Common Stock that is
issued on conversion or exercise of any Convertible
Securities shall, immediately upon issuance pursuant to
such conversion or exercise and without any notice or
any other action on the part of the Corporation or its
Board of Directors or the holder of such share of Class
G Common Stock:
(A) in the event the then-outstanding
shares of Class G Common Stock were exchanged
for CMS Energy Common Stock on such Exchange
Date pursuant to Section 2(a)(i) or 2(a)(ii), 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 the Corporation of any of its
capital stock for shares of any other capital
stock of the Corporation 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 the Corporation
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
shares of Class G Common Stock were exchanged
for common stock of the Gas Group Subsidiary
pursuant to Section 2(a)(iii), be redeemed, to
the extent of the assets of the Corporation
legally available therefor, for $.01 in cash.
The provisions of clause (A) of this Section 2(a)(iv) shall
not apply to the extent that equivalent adjustments are otherwise made
pursuant to the provisions of such Convertible Securities.
(b) General Exchange Provisions.
(i) In the event of any exchange pursuant to
this Section 2, the Corporation shall cause to be given
to each holder of Class G Common Stock to be so
exchanged a notice stating (A) that shares of such
class of Common Stock shall be exchanged, (B) the
Exchange Date, (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 of Common Stock held by such
holder, including details as to the calculation
thereof, (D) the place or places where certificates for
shares of such class of Common Stock, properly endorsed
or assigned for transfer (unless the Corporation 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, subject to Section 2(b)(iii) hereof,
dividends or other distributions on such shares of
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 nor more than 60 days
prior to the Exchange Date, and in any case to each
holder of shares of such class of Common Stock to be
exchanged at such holder's address as the same appears
on the stock transfer books of the Corporation. Neither
the failure to mail such notice to any particular
holder of such class of Common Stock nor any defect
therein shall affect the sufficiency thereof with
respect to any other holder of such class of Common
Stock.
(ii) The Corporation shall 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 pursuant to this Section
2. If more than one share of Class G Common Stock shall
be held at the same time by the same holder, the
Corporation 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, the Corporation shall, 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 shall be
(A) 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 such share and (B) in the case of
any other fractional security, such value as is
determined by the Board of Directors.
(iii) No adjustments in respect of dividends or
other distributions shall be made upon the exchange of
any shares of Class G Common Stock; provided, however,
that if the Exchange Date with respect to such class of
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 such
class of 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 the Corporation's default in
payment of the dividend or distribution due on such
date.
(iv) Before any holder of shares of Class G
Common Stock shall 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 such shares of such class of
Common Stock pursuant to this Section 2, such holder
shall surrender at such office as the Corporation shall
specify certificates for such shares of Common Stock,
properly endorsed or assigned for transfer (unless the
Corporation shall waive such requirement). The
Corporation will as soon as practicable after such
surrender of certificates representing such shares of
such class of Common Stock deliver to the person for
whose account such shares of such class of 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 contemplated by Section
2(b)(ii).
(v) 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, 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, together with any fractional
payment contemplated by Section 2(b)(ii) and rights to
dividends or other distributions as provided in Section
2(b)(iii). No holder of a certificate that immediately
prior to the applicable Exchange Date for Class G
Common Stock represented shares of such class of Common
Stock shall be entitled to receive any dividend or
other distribution with respect to shares of any kind
of capital stock into which such shares were exchanged
until surrender of such holder's certificate for a
certificate or certificates representing shares of such
kind of 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, the Corporation shall, however, be
entitled to treat the certificates for shares of 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 Class G Common Stock represented by
such certificates shall have been exchanged,
notwithstanding the failure to surrender such
certificates.
(vi) The Corporation 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 pursuant hereto. The Corporation
shall 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 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 the
Corporation the amount of any such tax, or has
established to the satisfaction of the Corporation that
such tax has been paid.
(c) Increase in Authorized Shares in Connection with
Exchange. In order to give effect to any exchange of Class G
Common Stock for CMS Energy Common Stock as contemplated by
Sections 2(a)(i) and 2(a)(ii), the Board of Directors shall
have the authority pursuant to Section 303(3) of the Michigan
Business Corporation Act, or any successor provision, to amend
these Articles of Incorporation to increase the number of
authorized shares of CMS Energy Common Stock to the number
that will be sufficient, when added to the previously
authorized but unissued shares of CMS Energy Common Stock, to
give effect to the exchange of Class G Common Stock. The
foregoing exchange provisions shall be deemed to be a
"conversion privilege" of the shares of Class G Common Stock
within the meaning of Section 303(3) of the Michigan Business
Corporation Act, or any successor provision.
(3) Voting Rights. (a) Except as provided in Section 3(b) and
except as otherwise provided by law, the holders of CMS Energy Common
Stock and Class G Common Stock shall vote together as a single class on
all matters as to which holders of Common Stock are entitled to vote.
Subject to Section 5, on all matters to be voted on by the holders of CMS
Energy Common Stock and Class G Common Stock together as a single class,
(i) each share of outstanding CMS Energy Common Stock shall have one vote
and (ii) each share of outstanding Class G Common Stock shall have one
vote. If shares of only one class of Common Stock are outstanding, each
share of that class shall have one vote. If any class of Common Stock of
the Corporation 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.
(b) Unless the vote or consent of the holders of a greater
number of shares shall then be required by law, the vote or consent of the
holders of a majority of all of the shares of either class of Common Stock
then outstanding, voting as a separate class, shall be necessary for
authorizing, effecting or validating the merger or consolidation of the
Corporation into or with any other entity if such merger or consolidation
would adversely affect the powers or special rights of such class of
Common Stock either directly by amendment of these 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.
(4) Liquidation Rights. Subject to Section 5, in the event of
the dissolution, liquidation or winding up of the Corporation, whether
voluntary or involuntary, after payment or provision for payment of the
debts and other liabilities of the Corporation 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 shall be entitled to receive, on a per share basis,
the same portion of all of the assets of the Corporation remaining for
distribution to the holders of Common Stock, regardless of whether or not
any of such assets were attributed to the Consumers Gas Group. Neither the
merger or consolidation of the Corporation into or with any other
corporation, nor the merger or consolidation of any other corporation into
or with the Corporation nor any sale, transfer or lease of all or any part
of the assets of the Corporation, shall be deemed to be a dissolution,
liquidation or winding up for purposes of this Section 4.
(5) Subdivision or Combination. If the Corporation shall in
any manner subdivide (by stock split, stock dividend or otherwise) or
combine (by reverse stock split or otherwise) the outstanding shares of
either Class G Common Stock or CMS Energy Common Stock, the voting and
liquidation rights of CMS Energy Common Stock relative to Class G Common
Stock shall be appropriately adjusted so as to avoid any dilution in the
aggregate voting or liquidation rights of either class of Common Stock.
(6) Definitions. As used in this Common Stock Division of
Article III, the following terms shall have the following meanings (with
terms defined in the singular having comparable meaning when used in the
plural and vice versa), unless another definition is provided or the
context otherwise requires.
"Available Class G Dividend Amount" on any date ("calculation
date") shall mean 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
preferred stock attributed to the Consumers Gas Group are
entitled as of such calculation date;
provided that such excess shall be reduced by an amount, if any,
sufficient to ensure that the businesses attributed to the Consumers Gas
Group shall be able to pay their debts as they become due in the usual
course of business.
"Business Day" shall mean 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.
"Consumers Gas Group" shall mean, at any time, (i) all of the
gas storage business of Michigan Gas Storage Company, (ii) all of the gas
utility business of Consumers Power Company, (iii) all assets and
liabilities of the Corporation to the extent attributed to either of such
businesses, whether or not such assets or liabilities are or were assets
and liabilities of such companies, (iv) all assets and properties of the
Corporation which when attributed to the Consumers Gas Group increase the
Retained Interest Shares, and (v) such businesses, assets, and liabilities
acquired directly or indirectly by the Corporation after the Effective
Date and determined by the Board of Directors to be attributed to the
Consumers Gas Group; provided that, from and after any dividend or
distribution with respect to any shares of Class G Common Stock (other
than a dividend or distribution payable in shares of Class G Common Stock
or Convertible Securities convertible into Class G Common Stock or
exercisable for Class G Common Stock), or any repurchase of shares of
Class G Common Stock from holders of Class G Common Stock generally, there
shall no longer be attributed to the Consumers Gas Group an amount of
assets or properties of the Consumers Gas Group equal to the aggregate
amount of such kind of assets or properties so paid in respect of shares
of Class G Common Stock multiplied by a fraction, the numerator of which
is equal to the Retained Interest Shares and the denominator of which is
equal to the number of outstanding shares of Class G Common Stock at such
time.
"Consumers Gas Group Income" shall mean the consolidated net
income or loss attributed to the Consumers Gas Group determined in
accordance with generally accepted accounting principles, including
consolidated income and expenses of Consumers Power Company attributed to
the operations of the Consumers Gas Group on a substantially consistent
basis, including, without limitation, corporate administrative costs, net
interest and other financial costs and income taxes.
"Convertible Securities" shall mean any securities of the
Corporation 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.
"Disposition" shall mean a sale, transfer, assignment or other
disposition (whether by merger, consolidation, sale or contribution of
assets, properties or stock or otherwise), but shall not include (1) an
attribution of assets or properties of the Corporation to the Consumers
Gas Group if such attribution increases the Retained Interest Shares, or
(2) assets or properties of the Corporation ceasing to be attributed to
the Consumers Gas Group if the result is a decrease in the Retained
Interest Shares.
"Effective Date" shall mean May 22, 1995.
"Exchange Date" shall mean any date fixed for an exchange of
shares of CMS Energy Common Stock for Class G Common Stock, as set forth
in a notice to holders of Class G Common Stock pursuant to Section 2(b)(i)
or of Convertible Securities convertible into or exercisable for shares of
Class G Common Stock.
"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 the Corporation 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 paid or to be (other
than as contemplated in (iv) below) 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.
"Gas Group Fraction" as of any date is a fraction the
numerator of which shall be the number of shares of Class G Common Stock
outstanding on such date and the denominator of which shall be the sum of
the number of shares of Class G Common Stock outstanding on such date plus
the Retained Interest Shares on such date, provided that such fraction
shall in no event be greater than one.
"Gas Group Subsidiary" shall have the meaning set forth in
Section 2(a)(iii).
"Retained Interest Shares" shall initially be 32,000,000
shares; provided, however, that such number from time to time shall 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 the Corporation, (B) the number of
Retained Interest Shares issued upon conversion or exercise of
Convertible Securities which are not attributed to the
Consumers Gas Group, (C) the number of Retained Interest
Shares issued by the Corporation 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 the Corporation which cease to be attributable
to the Consumers Gas Group in consideration for a decrease in
the Retained Interest Shares divided 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 outstanding shares
of Class G Common Stock repurchased by the Corporation 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 fair value (as determined by the
Board of Directors) of assets or properties of the Corporation
that are attributed to the Consumers Gas Group in
consideration for an increase in the Retained Interest Shares
divided by the Fair Market Value of one share of Class G
Common Stock as of the date of such attribution.
(7) Determinations by the Board of Directors. Any
determinations made in compliance with applicable law by the Board of
Directors of the Corporation under any provision in this Article III shall
be final and binding on all shareholders of the Corporation.
ARTICLE IV
The address of the registered office is Fairlane Plaza South,
Suite 1100, 330 Town Center Drive, Dearborn, Michigan 48126. The name of
the resident agent at the registered office is Thomas A. McNish.
ARTICLE V
Special meetings of the shareholders may be called only by the
Board of Directors or by the Chairman of the Board.
ARTICLE VI
The number of directors of the Corporation shall be as
specified in, or determined in the manner provided in, the bylaws of the
Corporation.
Any vacancies occurring on the Corporation's Board of
Directors (whether by reason of the death, resignation or removal of a
director) may be filled by a majority vote of the directors then in office
although less than a quorum. An increase in the number of members of the
Board of Directors shall be construed as creating a vacancy.
ARTICLE VII
A director may be removed by the affirmative vote of a
majority of the members of the Board of Directors then in office. A
director also may be removed by shareholders, but only for cause, at an
annual meeting of shareholders and by the affirmative vote of a majority
of the shares then entitled to vote for the election of directors. For
purposes of this section, cause for removal shall be construed to exist
only if a director whose removal is proposed has been convicted of a
felony by a court of competent jurisdiction and such conviction is no
longer subject to appeal or has been adjudged by a court of competent
jurisdiction to be liable for willful misconduct in the performance of his
or her duty to the Corporation in a matter of substantial importance to
the Corporation and such adjudication is no longer subject to appeal.
ARTICLE VIII
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
Each director and each officer of the Corporation shall be
indemnified by the Corporation to the fullest extent permitted by law
against expenses (including attorneys' fees), judgments, penalties, fines
and amounts paid in settlement actually and reasonably incurred by him or
her in connection with the defense of any proceeding in which he or she
was or is a party or is threatened to be made a party by reason of being
or having been a director or an officer of the Corporation. Such right of
indemnification is not exclusive of any other rights to which such
director or officer may be entitled under any now or hereafter existing
statute, any other provision of these Articles, bylaw, agreement, vote of
shareholders or otherwise. If the Business Corporation Act of the State
of Michigan is amended after approval by the shareholders of this Article
IX to authorize corporate action further eliminating or limiting the
personal liability of directors, then the liability of a director of the
Corporation shall be eliminated or limited to the fullest extent permitted
by the Business Corporation Act of the State of Michigan, as so amended.
Any repeal or modification of this Article IX by the shareholders of the
Corporation shall not adversely affect any right or protection of a
director of the Corporation existing at the time of such repeal or
modification.
ARTICLE X
Each director shall be a shareholder of the Corporation and
any director ceasing to be a shareholder shall thereupon immediately cease
to be a director.
ARTICLE XI
The Corporation reserves the right to amend, alter, change or
repeal any provision in these Articles of Incorporation as permitted by
law, and all rights conferred on shareholders herein are granted subject
to this reservation. Notwithstanding the foregoing, the provisions of
Articles V, VI, VII, VIII, IX and this Article XI may not be amended,
altered, changed or repealed unless such amendment, alteration, change or
repeal is approved by the affirmative vote of the holders of not less than
75% of the outstanding shares entitled to vote thereon.
<PAGE>
<PAGE> 13
Signed on June 5, 1995.
CMS ENERGY CORPORATION
By: /s/Thomas A. McNish
-----------------------------------------
Thomas A. McNish
Vice President and Secretary
(SEAL)
STATE OF MICHIGAN)
) ss.
COUNTY OF JACKSON)
On this 5th day of June, 1995, before me appeared Thomas A.
McNish, to me personally known, who, being by me duly sworn, did say that
he is Vice President and Secretary of CMS Energy Corporation, which
executed the foregoing instrument, and that the seal affixed to said
instrument is the corporate seal of said corporation, and that said
instrument was signed and sealed in behalf of said corporation by
authority of its Board of Directors and shareholders, and said officer
acknowledged said instrument to be the free act and deed of said
corporation.
/s/Margaret Hillman
-------------------------------------
Margaret Hillman
Notary Public for Jackson County
State of Michigan
My Commission Expires August 21, 1995
(SEAL)
<PAGE>
<PAGE>
EXHIBIT NO. (5)<PAGE>
<PAGE>
Exhibit (5)
CMS ENERGY
Fairlane Plaza South
330 Town Center Drive, Suite 1100
Dearborn, Michigan 48126
Facsimile - (517) 788-0768 Denise M Sturdy
Writer's Direct Dial Number - (517) 788-0179 Assistant General
Counsel
June 6, 1995
CMS Energy Corporation
Fairlane Plaza South, Suite 1100
330 Town Center Drive
Dearborn, MI 48126
RE: 3,000,000 Shares of CMS Energy Common Stock, $.01 Par Value
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-4 (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 3,000,000 shares of Common Stock, par value $.01 per share
(the "CMS Energy Common Stock"), of the Company.
I am familiar with the proceedings to date with respect to the
proposed issuance and sale of the CMS Energy 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 CMS Energy 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 CMS Energy Common Stock as contemplated by the Registration Statement;
and (iii) certificates representing the CMS Energy 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
CMS Energy 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
Denise M. Sturdy, Esq.
<PAGE>
<PAGE>
EXHIBIT NO. (15)<PAGE>
<PAGE>
Exhibit (15)
ARTHUR ANDERSEN LLP
To CMS Energy Corporation:
We are aware the CMS Energy Corporation has incorporated by reference in
this registration statement its Form 10-Q for the quarter ended March 31,
1995, which includes our report dated May 8, 1995 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,
June 2, 1995.
<PAGE>
<PAGE>
EXHIBIT NO. (23)(i)<PAGE>
<PAGE>
Exhibit (23)(i)
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.
/s/ Arthur Andersen LLP
Detroit, Michigan
June 2, 1995
<PAGE>
<PAGE>
EXHIBIT NO. (23)(ii)
(See Exhibit (5))
<PAGE>
<PAGE>
EXHIBIT NO. (24)<PAGE>
<PAGE>
Exhibit (24)
CMS ENERGY
Fairlane Plaza South
330 Town Center Drive, Suite 1100
Dearborn, Michigan 48126
(313) 436-9200
May 26, 1994
Mr. Alan M. Wright and
Mr. Thomas A. McNish
CMS Energy Corporation
Fairlane Plaza South, Suite 1100
330 Town Center Drive
Dearborn, MI 48126
CMS Energy Corporation proposes to file a registration statement with the
Securities and Exchange Commission with respect to the issue and sale of
up to 3,000,000 shares of its Common Stock in connection with, but not
limited to, the acquisition of businesses (or the assets thereof)
complementary to and related to CMS Energy Corporation's current
businesses.
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 and The New York Stock Exchange a registration
statement(s) and/or any appropriate amendment or amendments to said
registration statement(s) and other necessary documents required to be
filed with the Securities and Exchange Commission or The New York Stock
Exchange.
/s/ William T McCormick, Jr. /s/ Frank H Merlotti
----------------------------- ---------------------------------
William T. McCormick, Jr. Frank H. Merlotti
/s/ James J Duderstadt
----------------------------- ---------------------------------
James J. Duderstadt William U. Parfet
/s/ K R Flaherty /s/ Percy A Pierre
----------------------------- ---------------------------------
Kathleen R. Flaherty Percy A. Pierre
/s/ Victor J Fryling /s/ S. Kinnie Smith, Jr
----------------------------- ---------------------------------
Victor J. Fryling S. Kinnie Smith, Jr.
/s/ Earl D Holton /s/ Kenneth Whipple
----------------------------- ---------------------------------
Earl D. Holton Kenneth Whipple
/s/ Lois A. Lund /s/ John B Yasinsky
----------------------------- ---------------------------------
Lois A. Lund John B. Yasinsky
<PAGE>
<PAGE>
Extract from the minutes of a meeting of the Board of Directors of CMS
Energy Corporation (the "Corporation") held on May 26, 1995.
- - - - - - - - - -
Proposed Issue and Sale of Common Stock
In order to facilitate the acquisition by the Corporation of
certain businesses, management recommended that the officers be authorized
to execute and file a registration statement, including any amendments,
with the Securities and Exchange Commission for the issue and sale of not
more than 3,000,000 shares of its common stock.
Upon motion duly made and seconded, the following
resolutions were thereupon unanimously adopted:
RESOLVED: 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
with respect to the issue and sale of not more than
3,000,000 shares of authorized but unissued common stock,
$.01 par value, of the Corporation, in such form as may be
approved by the officers of the Corporation executing the
same, 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 may be desirable
for the common stock to be qualified or registered for sale
in various jurisdictions; therefore, the officers of the
Corporation, and each of them, are authorized and directed
to determine the jurisdictions in which appropriate action
shall be taken to qualify or register for sale all or such
part of the common stock of the Corporation as they may deem
advisable; to perform 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
jurisdictions, 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 or any of them
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
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 3,000,000 additional shares of
common stock 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 3,000,000 shares of
the common stock, $.01 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 3,000,000 shares of
common stock, $.01 par value, of the Corporation.
- - - - - - - - - -
I, Thomas A. McNish, Vice President and Secretary of CMS Energy
Corporation, 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 held on May 26, 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 6th day of June 1995.
/s/Thomas A. McNish
------------------------------------
Thomas A. McNish
Vice President and Secretary
(SEAL)
<PAGE>
==========================================================================
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
_______________
FORM S-4
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CMS ENERGY CORPORATION
EXHIBITS
==========================================================================
<PAGE>
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page
- ----------- ----------------------------------------------- -----
(3)(i) - Restated Articles of Incorporation of CMS Energy,
as filed with the Michigan Department of
Commerce on June 6, 1995.
(3)(ii) - Copy of the By-Laws of CMS Energy. (Designated in
CMS Energy's Form 10-K for the year ended
December 31, 1994, File No. 1-9513, as
Exhibit (3)(b).)
(4)(i) - 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).)
(4)(i)(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).)
(4)(i)(B) - 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).)
(4)(ii) - Credit Agreement dated as of July 29, 1994, among
CMS Energy Corporation, the Banks, the Co-Agents, the
Documentation Agent, the Operational Agent and the
Co-Manager, all as defined 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)(iii) - Indenture dated as of January 15, 1994 between
CMS Energy and The Chase Manhattan Bank, National
Association, as Trustee. (Designated in CMS Energy's
Form 8-K dated March 29, 1994, File No. 1-9513, as
Exhibit (4)(a).)
(4)(iii)(A) - First Supplemental Indenture dated as of January 20,
1994 between CMS Energy and The Chase Manhattan Bank,
National Association, as Trustee. (Designated in
CMS Energy's Form 8-K dated March 29, 1994, File No.
1-9513, as Exhibit (4)(b).)
(5) - Opinion of Counsel.
(15) - Letter on unaudited interim financial information.
(21) - Subsidiaries of the registrant. (Designated in
CMS Energy's Form 10-K for the year ended December 31,
1994, File No. 1-9513 as Exhibit (21)(a).)
(23)(i) - Consent of Arthur Andersen LLP.
(23)(ii) - Consent of Counsel is contained in Exhibit 5 hereto.
(24) - Powers of Attorney.
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.
<PAGE>
