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As filed with the Securities and Exchange Commission on January 8, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
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WASHINGTON, D.C. 20549
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FORM S-3 AND FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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<TABLE>
<S> <C>
CMS ENERGY CORPORATION CMS ENERGY X-TRAS SM PASS-THROUGH TRUST I
(Exact name of registrant (Exact name of registrant
as specified in its charter) as specified in its charter)
Michigan Delaware
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
38-2726431 38-3382222
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
Fairlane Plaza South, Suite 1100 c/o Wilmington Trust Company
330 Town Center Drive Rodney Square North
Dearborn, Michigan 48126 1100 North Market Street
(313) 436-9200 Wilmington, DE 19890-0001
(Address, including zip code, and telephone number, (302) 651-1000
including area code, of registrant's (Address, including zip code, and telephone number,
principal executive offices) including area code, of registrant's principal executive
offices)
</TABLE>
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Alan M. Wright
Senior Vice President, Chief Financial Officer and Treasurer
Fairlane Plaza South, Suite 1100
330 Town Center Drive
Dearborn, Michigan 48126
(313) 436-9200
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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It is respectfully requested that the Commission send copies
of all notices, orders and communications to:
Michael D. VanHemert, Esq. Joel S. Klaperman, Esq.
CMS Energy Corporation Shearman & Sterling
Fairlane Plaza South 599 Lexington Avenue
330 Town Center Drive, Suite 1100 New York, New York 10022
Dearborn, Michigan 48126 (212) 848-4000
(313) 436-9602
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Approximate date of commencement of proposed sale to the public: As soon
as practicable after the effective date of this Registration Statement.
___________________
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box: / /
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box: / /
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. /X/ Registration
Nos. 333-41395 and 333-41395-01
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. / /
CALCULATION OF REGISTRATION FEE
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<CAPTION>
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Title of each class Amount Proposed Proposed Amount of
securities to be to be maximum offering maximum aggregate registration
registered registered price per security (1) offering price(1) fee
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<S> <C> <C> <C> <C>
Pass-Through Certificates
due 2005 $30,000,000 100% $30,000,000 $8,850.00
__ % Extendible Tenor Rate-
Adjusted Securities due
2005(2) $30,000,000 N/A N/A N/A
Total $30,000,000 100% $30,000,000 $8,850.00
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(1) Estimated solely for the purpose of calculating the registration fee.
(2) The ___% Extendible Tenor Rate-Adjusted Securities due 2005 will be
purchased by CMS Energy X-TRAS(SM) Pass-Through Trust I with the
proceeds of the sale of the Pass-Through Certificates.
This Registration Statement shall become effective upon filing with the
Commission in accordance with Rule 462(b) under the Securities Act of 1933.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE PURSUANT TO GENERAL INSTRUCTION
IV OF FORM S-3
In accordance with the provisions of General Instruction IV of Form S-3
and General Instruction V of Form S-1, CMS Energy Corporation ("CMS Energy")
and CMS Energy X-TRAS(SM) Pass-Through Trust I (the "Trust") hereby incorporate
by reference the contents of Amendment No. 1 to CMS Energy's and the Trust's
Registration Statement on Form S-3 and Form S-1 (Registration Nos. 333-41395
and 333-41395-01) filed with the Securities and Exchange Commission on December
23, 1997 (the "Original Registration Statement"), which Original Registration
Statement was declared effective on January 6, 1998.
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
All Exhibits filed with the Original Registration Statement are
incorporated by reference into, and shall be deemed part of, this Registration
Statement, except the following, which are filed herewith:
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<CAPTION>
EXHIBIT NO. DESCRIPTION
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(5) - Opinion of Richard, Layton & Finger regarding the legality of the Certificates.
(15) - Letter regarding unaudited interim financial information.
(23)(a) - Consent of Richards, Layton & Finger (included in Exhibit (5) above).
(23)(b) - Consent of Arthur Andersen LLP.
</TABLE>
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.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Dearborn, and State of Michigan, on the 8th day
of January, 1998.
CMS ENERGY CORPORATION
By /s/ A.M. Wright
----------------------
Alan M. Wright
Senior Vice President,
Chief Financial Officer and Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in their
respective capacities as officers and/or directors of CMS Energy Corporation
and on the dates indicated.
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<CAPTION>
Name Title Date
---- ----- ----
<S> <C> <C>
(i) Principal executive officer
Chairman of the Board, January 8, 1998
/s/ William T. McCormick, Jr. Chief Executive Officer
- --------------------------------- and Director
(William T. McCormick, Jr.)
(ii) Principal financial officer:
Senior Vice President, January 8, 1998
/s/ A.M. Wright Chief Financial Officer
- --------------------------------------- and Treasurer
(Alan M. Wright)
(iii) Controller or principal accounting officer:
Senior Vice President, Controller January 8, 1998
/s/ P.D. Hopper and Chief Accounting Officer
- -------------------------------
(Preston D. Hopper)
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<TABLE>
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* January 8, 1998
- -------------------------
(John M. Deutch) Director
* January 8, 1998
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(James J. Duderstadt) Director
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(Kathleen R. Flaherty Director
* January 8, 1998
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(Victor J. Fryling) Director
* January 8, 1998
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(Earl D. Holton) Director
* January 8, 1998
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(William U. Parfet) Director
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(Percy A. Pierre) Director
* January 8, 1998
- -------------------------
(Kenneth Whipple) Director
* January 8, 1998
- -------------------------
(John B. Yasinsky) Director
*By /s/ A.M. Wright
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(Alan M. Wright)
Attorney-in-fact
</TABLE>
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, CMS Energy
X-TRAS(SM) Pass-Through Trust I has duly caused this Registration Statement to
be signed on its behalf by the undersigned, thereunto duly authorized, in the
City of Dearborn, State of Michigan, on the 8th day of January, 1998.
CMS Energy X-TRAS(SM) Pass-Through Trust I
By /s/ A.M. Wright
-----------------------
Alan M. Wright
Senior Vice President, Chief Financial Officer
and Treasurer
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============================================================================
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
________________
FORM S-3 AND FORM S-1
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
CMS ENERGY CORPORATION
CMS ENERGY X-TRAS(SM) PASS-THROUGH TRUST I
EXHIBITS
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EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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(5) - Opinion of Richard, Layton & Finger regarding the legality of the Certificates.
(15) - Letter regarding unaudited interim financial information.
(23)(a) - Consent of Richards, Layton & Finger (included in Exhibit (5) above).
(23)(b) - Consent of Arthur Andersen LLP.
</TABLE>
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EXHIBIT 5
[RICHARDS, LAYTON & FINGER LETTERHEAD]
January 8, 1998
CMS Energy X-TRAS Pass-Through Trust I
c/o CMS Energy Corporation
Fairlane Plaza South
330 Town Center Drive, Suite 1100
Dearborn, Michigan 48126
RE: CMS Energy X-TRAS Pass-Through Trust I
Ladies and Gentlemen:
We have acted as special Delaware counsel for CMS Energy
Corporation, a Michigan corporation (the "Company"), and CMS Energy X-TRAS
Pass-Through Trust I, a Delaware business trust (the "Trust"), in connection
with the matters set forth herein. At your request, this opinion is being
furnished to you.
For purposes of giving the opinions hereinafter set forth,
our examination of documents has been limited to the examination of originals
or copies of the following:
(a) The Certificate of Trust of the Trust (the
"Certificate of Trust") as filed in the office of the Secretary of State of the
State of Delaware (the "Secretary of State") on November 21, 1997;
(b) The Declaration of Trust of the Trust, dated as of
November 21, 1997, among the Company, as Sponsor, and the trustees of the Trust
named therein;
(c) The Registration Statement (the "Registration
Statement") on Form S-3, including a preliminary prospectus and preliminary
prospectus supplement (the "Prospectus") relating to the Pass-Through
Certificates of the Trust representing preferred undivided beneficial
interests in the assets of the Trust (each, a "Pass-Through Certificate" and
collectively, the Pass-Through Certificates"), as proposed to be filed by the
Company, the Trust and others as set forth therein with the Securities and
Exchange Commission on or about December 1, 1997;
(d) A form of Amended and Restated Declaration of Trust
of the Trust, to be entered into among the Company, as Sponsor, the trustees of
the Trust named therein, and the holders, from time to time, of undivided
beneficial interests in the assets of the Trust (including Annex A and Exhibit
A-1 and A-2 thereto) (the "Declaration"), attached as an exhibit to the
Registration Statement; and
(e) A certificate of Good Standing for the Trust, dated
November 1, 1997, obtained from the Secretary of State.
Initially capitalized terms used herein and not otherwise
defined are used as defined in the
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Declaration.
For purposes of this opinion, we have not reviewed any
documents other than the documents listed in paragraphs (a) through (e) above.
In particular, we have not reviewed any document (other than the documents
incorporated by reference into the documents reviewed by us. We have assumed
that there exists no provision in any document that we have not reviewed that
is inconsistent with the opinions stated herein. We have conducted no
independent factual investigation of our own but rather have relied solely upon
the foregoing documents, the statements and information set forth therein and
the additional matters recited or assumed herein, all of which we have assumed
to be true, complete and accurate in all material respects.
With respect to all documents examined by us, we have
assumed (i) the authenticity of all documents submitted to us as authentic
originals, (ii) the conformity with the originals of all documents submitted to
us as copies or forms, and (iii) the genuineness of all signatures.
For purposes of this opinion, we have assumed (i) that the
Declaration and the Certificate of Trust are in full force and effect and have
not been amended, (ii) except to the extent provided in paragraph 1 below, the
due creation or due organization or due formation, as the case may be, and
valid existence in good standing of each party to the documents examined by us
under the laws of the jurisdiction governing its creation, organization or
formation, (iii) the legal capacity of natural persons who are parties to the
documents examined by us, (iv) that each of the parties to the documents
examined by us has the power and authority to execute and deliver, and to
perform its obligations under, such documents, (v) the due authorization,
execution and delivery by all parties thereto of all documents examined by us,
(vi) the receipt by each Person to whom a Pass-Through Certificate is to be
issued by the Trust (collectively, the "Pass-Through Certificate Holders") of a
Pass-Through Certificate and the payment for the Pass-Through Certificate
acquired by it, in accordance with the Declaration and the Registration
Statement, and (vi) that the Pass-Through Certificates are issued and sold to
the Pass-Through Certificate Holders in accordance with the Declaration and the
Registration Statement. We have not participated in the preparation of the
Registration Statement and assume no responsibility for its contents.
This opinion is limited to the laws of the State of
Delaware (excluding the securities laws of the State of Delaware), and we have
not considered and express no opinion on the laws of any other jurisdiction,
including federal laws and rules and regulations relating thereto. Our
opinions are rendered only with respect to Delaware laws and rules, regulations
and orders thereunder which are currently in effect.
Based upon the foregoing, and upon our examination of such
questions of law and statutes of the State of Delaware as we have considered
necessary or appropriate, and subject to the assumptions, qualifications,
limitations and exceptions set forth herein, we are of the opinion that:
1. The Trust has been duly created and is validly
existing in good standing as a business trust under the Delaware Business Trust
Act.
2. The Pass-Through Certificates will represent valid
and, subject to the qualifications set forth in paragraph 3 below, fully paid
and nonassessable undivided beneficial interests in the assets of the Trust.
3. The Pass-Through Certificate Holders, as beneficial
owners of the Trust, will be entitled to the same limitation of personal
liability extended to stockholders of private corporations for profit organized
under the General Corporation Law of the State of Delaware. We note that the
Pass-Through Certificate Holders may be obligated to make payments as set forth
in the Declaration.
We consent to the filing of this opinion with the
Securities and Exchange Commission as an exhibit to the Registration Statement.
In addition, we hereby consent to the use of our name under the heading
"Validity of the Certificates" in the Prospectus. In giving the foregoing
consents, we do not thereby admit that
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January 8, 1988
Page 3
we come within the category of Persons whose consent is required under Section
7 of the Securities Act of 1933, as amended, or the rules and regulations of
the Securities and Exchange Commission thereunder. Except as stated above,
without our prior written consent, this opinion may not be furnished or quoted
to, or relied upon by, any other Person for any purpose.
Very truly yours,
/s/ Richards, Layton & Finger
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[ARTHUR ANDERSEN LLP LETTERHEAD]
EXHIBIT (15)
To CMS Energy Corporation:
We are aware that CMS Energy Corporation has incorporated by reference
in this registration statement its Form 10-Q for the quarter ended March 31,
1997, its Form 10-Q for the quarter ended June 30, 1997, and its Form 10-Q for
the quarter ended September 30, 1997, which include our reports dated May 9,
1997, August 11, 1997, and November 10, 1997, respectively, covering the
unaudited interim financial information contained therein. Pursuant to
Regulation C of the Securities Act of 1933, this report is not considered a
part of the registration statement prepared or certified by our Firm or a
report prepared or certified by our Firm within the meaning of Sections 7 and
11 of the Act.
/s/ Arthur Andersen LLP
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Detroit, Michigan,
January 8, 1998.
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[ARTHUR ANDERSEN LLP LETTERHEAD]
EXHIBIT (23)(b)
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the
incorporation by reference in this registration statement of our reports dated
January 24, 1997 included or incorporated by reference in CMS Energy
Corporation's Form 10-K for the year ended December 31, 1996, and to all
references to our Firm included in this registration statement.
/s/ Arthur Andersen LLP
-----------------------
Detroit, Michigan,
January 8, 1998
