<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON DECEMBER 22, 2000
REGISTRATION NO.
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================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
<TABLE>
<S> <C>
CMS ENERGY CORPORATION CMS ENERGY TRUST I
(Exact name of registrant as specified in (Exact name of registrant as specified
its charter) in its charter)
MICHIGAN DELAWARE
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
38-2726431 52-6863512
(I.R.S. Employer Identification No.) (I.R.S. Employer Identification No.)
FAIRLANE PLAZA SOUTH ALAN M. WRIGHT
330 TOWN CENTER DRIVE, SUITE 1100 EXECUTIVE VICE PRESIDENT, CHIEF
DEARBORN, MICHIGAN 48126 FINANCIAL OFFICER AND CHIEF ADMINISTRATIVE OFFICER
(313) 436-9200 CMS ENERGY CORPORATION
(Address, including zip code, and telephone FAIRLANE PLAZA SOUTH
number, including, area code, of registrant's 330 TOWN CENTER DRIVE, SUITE 1100
principal offices) DEARBORN, MICHIGAN 48126
(313) 436-9200
(Name, address, including zip code,
and telephone number, including area
code, of agent for service)
CMS ENERGY TRUST II CMS ENERGY TRUST III
(Exact name of registrant as specified (Exact name of registrant as specified
in its charter) in its charter)
DELAWARE DELAWARE
(State or other jurisdiction of (State or other jurisdiction of
incorporation or organization) incorporation or organization)
52-6913761 51-0386378
ALAN M. WRIGHT ALAN M. WRIGHT
EXECUTIVE VICE PRESIDENT, CHIEF EXECUTIVE VICE PRESIDENT, CHIEF
FINANCIAL OFFICER AND CHIEF ADMINISTRATIVE OFFICER FINANCIAL OFFICER AND CHIEF ADMINISTRATIVE OFFICER
CMS ENERGY CORPORATION CMS ENERGY CORPORATION
FAIRLANE PLAZA SOUTH FAIRLANE PLAZA SOUTH
330 TOWN CENTER DRIVE, SUITE 1100 330 TOWN CENTER DRIVE, SUITE 1100
DEARBORN, MICHIGAN 48126 DEARBORN, MICHIGAN 48126
(313) 436-9200 (313) 436-9200
(Name, address, including zip code, (Name, address, including zip code,
and telephone number, including area and telephone number, including area
code, of agent for service) code, of agent for service)
</TABLE>
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It is respectfully requested that the Commission send copies of all notices,
orders and communications to:
MICHAEL D. VAN HEMERT, ESQ.
ASSISTANT GENERAL COUNSEL
CMS ENERGY CORPORATION
FAIRLANE PLAZA SOUTH
330 TOWN CENTER DRIVE, SUITE 1100
DEARBORN, MICHIGAN 48126
(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.
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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: [X]
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. [ ]
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
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
TITLE OF EACH CLASS OF AMOUNT TO BE OFFERING PRICE AGGREGATE OFFERING REGISTRATION
SECURITIES TO BE REGISTERED REGISTERED (1) (2) PER UNIT (1) (2) (3) PRICE (1) (2) (3) FEE(1) (2)
<S> <C> <C> <C> <C>
Common Stock, par value $.01 per share, of CMS Energy
Corporation.............................................
Subordinated Debentures of CMS Energy Corporation (4)...
Trust Preferred Securities of CMS Energy Trust I (5)....
Trust Preferred Securities of CMS Energy Trust II (5)...
Trust Preferred Securities of CMS Energy Trust III (5)..
Guarantee of CMS Energy Corporation with respect to
Trust Preferred Securities of CMS Energy Trust I,
CMS Energy Trust II and CMS Energy Trust III (6)........
Stock Purchase Contracts of CMS Energy Corporation(7)...
Stock Purchase Units of CMS Energy Corporation(7).......
Total................................................... $ 700,000,000 100% $ 700,000,000 $ 123,640(8)
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</TABLE>
(1) There are being registered hereunder such presently indeterminate
principal amount or number of shares of CMS Energy Corporation Common
Stock, Subordinated Debentures, Stock Purchase Contracts and Stock
Purchase Units, as well as Trust Preferred Securities of CMS Energy
Trust I, CMS Energy Trust II, and CMS Energy Trust III as may from time
to time be issued at indeterminate prices, plus additional shares of CMS
Energy Corporation Common Stock into which such Subordinated Debentures
or Trust Preferred Securities may be converted. This Registration
Statement may be used to offer the various component securities of CMS
Energy Trust I's 7 3/4% Convertible Quarterly Income Preferred
Securities; CMS Energy Trust II's 8.750% Adjustable Convertible Trust
Securities; and CMS Energy Trust III's 7 1/4% Premium Equity
Participating Security Units.
(2) Estimated solely for the purpose of calculating the registration fee.
Pursuant to Rule 457(o) under the Securities Act of 1933 which permits
the registration fee to be calculated on the basis of the maximum
offering price of all the securities listed, the table does not specify
by each class information as to the amount to be registered, proposed
maximum offering price per unit or proposed maximum aggregate offering
price.
(3) Exclusive of accrued interest and distributions, if any.
(4) The Subordinated Debentures may be purchased by, and constitute assets
of, CMS Energy Trust I, CMS Energy Trust II, or CMS Energy Trust III and
may later be distributed under certain circumstances to holders of Trust
Preferred Securities. Additionally, Common Stock may be issued upon
conversion of any convertible Subordinated Debentures. In either case,
no additional consideration will be received.
(5) The Trust Preferred Securities may be convertible into the Subordinated
Debentures, which may be convertible into shares of CMS Energy
Corporation Common Stock. In addition, the Trust Preferred Securities
may be directly convertible into shares of CMS Energy Corporation Common
Stock. Shares of CMS Energy Corporation Common Stock issued upon
conversion of the Subordinated Debentures or Trust Preferred Securities
will be issued without the payment of additional consideration.
(6) The Registration Statement is deemed to include the obligations of CMS
Energy Corporation under the Guarantee (as defined herein) and certain
backup undertakings under: (i) the Subordinated Debt Indenture (as
defined herein) pursuant to which the Subordinated Debentures will be
issued; (ii) the Subordinated Debentures; and (iii) the Declaration of
Trust of CMS Energy Trust I, CMS Energy Trust II, and CMS Energy Trust
III including CMS Energy Corporation's obligations under such indenture
to pay costs, expenses, debts and liabilities of the Trust (other than
with respect to the Trust Preferred Securities and the Common Securities
of CMS Energy Trust I, CMS Energy Trust II, or CMS Energy Trust III),
which taken together provide a full and unconditional guarantee of
amounts due on the Trust Preferred Securities. No separate consideration
will
<PAGE> 3
be received for the Guarantee and such backup undertakings. The
Guarantee is not traded separately.
(7) Includes a presently indeterminate number of shares of Common Stock to
be issuable by CMS Energy Corporation upon settlement of the Stock
Purchase Contracts or Stock Purchase Units issued by CMS Energy
Corporation.
(8) Pursuant to Rule 429 of the Securities Act of 1933, as amended, the
prospectus contained herein also relates to the Common Stock,
Subordinated Debt Securities, Trust Preferred Securities of CMS Energy
Trusts II and III, Guarantees, Stock Purchase Contracts, and Stock
Purchase Units of the registrant contained in the Registration Statement
on Form S-3 (File No. 333-68937) of which $220,000,000 is being carried
forward. The filing fee associated with the securities carried forward
and previously paid with the earlier Registration Statement is $61,160.
--------------
THE REGISTRANTS HEREBY AMEND THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANTS 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 THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
<PAGE> 4
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED DECEMBER 22, 2000
CMS ENERGY CORPORATION
CMS ENERGY COMMON STOCK
SUBORDINATED DEBENTURES
STOCK PURCHASE CONTRACTS
STOCK PURCHASE UNITS
GUARANTEES
AND
CMS ENERGY TRUST I
CMS ENERGY TRUST II
CMS ENERGY TRUST III
TRUST PREFERRED SECURITIES
GUARANTEED TO THE EXTENT SET FORTH HEREIN BY
CMS ENERGY CORPORATION
OFFERING PRICE: $700,000,000
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We may offer, from time to time:
- shares of CMS Energy Common Stock,
- unsecured subordinated debt securities consisting of
debentures, convertible debentures, notes and other unsecured
evidence of indebtedness,
- stock purchase contracts to purchase CMS Energy Common Stock,
- stock purchase units, each representing ownership of a stock
purchase contract and unsecured senior or subordinated debt
securities or trust preferred securities or debt obligations
of third parties, including U.S. Treasury Securities, securing
the holder's obligation to purchase the CMS Energy Common
Stock under the stock purchase contract, or any combination of
the above, and
- Guarantees of CMS Energy with respect to Trust Preferred
Securities of CMS Energy Trusts I, II and III.
For each type of securities listed above, the amount, price and terms will be
determined at or prior to the time of sale.
CMS Energy Trust I, CMS Energy Trust II, and CMS Energy Trust III, which are
Delaware business trusts, may offer trust preferred securities. The trust
preferred securities represent preferred undivided beneficial interests in the
assets of CMS Energy Trust I, CMS Energy Trust II and CMS Energy Trust III in
amounts, at prices and on terms to be determined at or prior to the time of
sale.
This prospectus may be used to offer the various component securities of CMS
Energy Trust I's 7 3/4% Convertible Quarterly Income Preferred Securities; CMS
Energy Trust II's 8.750% Adjustable Convertible Trust Securities; and CMS Energy
Trust III's 7 1/4% Premium Equity Participating Security Units.
We will provide the specific terms of these securities in an accompanying
prospectus supplement or supplements. You should read this prospectus and the
accompanying prospectus supplement or supplements carefully before you invest.
CMS Energy Common Stock is traded on the New York Stock Exchange under the
symbol "CMS". CMS Energy Common Stock sold pursuant to a prospectus supplement
or supplements accompanying this prospectus will also be listed for trading on
the New York Stock Exchange, subject to official notice of issuance.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
accuracy or adequacy of this prospectus. Any representation to the contrary is a
criminal offense.
We intend to sell these securities through underwriters, dealers, agents or
directly to a limited number of purchasers. The names of, and any securities to
be purchased by or through, these parties, the compensation of these parties and
other special terms in connection with the offering and sale of these securities
will be provided in the related prospectus supplement or supplements.
This prospectus may not be used to consummate sales of any of these securities
unless accompanied by a prospectus supplement.
The date of this prospectus is December 22, 2000
<PAGE> 5
NO PERSON IS AUTHORIZED IN CONNECTION WITH THE OFFERING MADE HEREBY TO GIVE
ANY INFORMATION OR TO MAKE ANY REPRESENTATION NOT CONTAINED OR INCORPORATED BY
REFERENCE IN THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT, AND ANY INFORMATION
OR REPRESENTATION NOT CONTAINED OR INCORPORATED HEREIN MUST NOT BE RELIED UPON
AS HAVING BEEN AUTHORIZED BY CMS ENERGY OR ANY UNDERWRITER, DEALER OR AGENT.
THIS PROSPECTUS AND ANY PROSPECTUS SUPPLEMENT DO NOT CONSTITUTE AN OFFER TO SELL
OR THE SOLICITATION OF AN OFFER TO BUY ANY SECURITIES OTHER THAN THE SECURITIES
TO WHICH THEY RELATE OR AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY
SUCH SECURITIES IN ANY CIRCUMSTANCES IN WHICH SUCH OFFER OR SOLICITATION IS
UNLAWFUL. NEITHER THE DELIVERY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT
NOR ANY SALE MADE HEREUNDER OR THEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE
ANY IMPLICATION THAT THE INFORMATION CONTAINED OR INCORPORATED HEREIN OR THEREIN
IS CORRECT AS OF ANY TIME SUBSEQUENT TO THE DATE OF SUCH INFORMATION.
WHERE TO FIND MORE INFORMATION
We file annual, quarterly and current reports, as well as other information,
with the Securities and Exchange Commission. You may read and copy any reports
or other information that we file at the SEC's public reference room at
Judiciary Plaza, 450 Fifth Street N.W., Washington, D.C. 20549. You may obtain
information on the operation of the public reference room by calling the SEC at
1-800-SEC-0330. Our SEC filings are also available to the public from commercial
document retrieval services and on the internet at the SEC's web site at
http://www.sec.gov.
We have securities listed on the New York Stock Exchange. You can inspect
and copy reports and other information about us at the NYSE's offices at 20
Broad Street, New York, New York 10005.
We have not included separate financial statements of the Trusts. We and the
Trusts do not consider that such financial statements would be material to
holders of Trust Preferred Securities because each Trust is a newly organized
special purpose entity, has no operating history and no independent operations.
The Trusts are not currently involved in and don't anticipate being involved in
any activity other than as described under "CMS Energy Trusts". Further, we
believe that financial statements of the Trusts are not material to the holders
of the Trust Preferred Securities since we will guarantee the Trust Preferred
Securities. Holders of the Trust Preferred Securities, with respect to the
payment of distributions and amounts upon liquidation, dissolution and
winding-up, are at least in the same position vis-a-vis the assets of CMS Energy
as a preferred stockholder of CMS Energy. We beneficially own all of the
undivided beneficial interests in the assets of the Trusts (other than the
beneficial interests represented by the Trust Preferred Securities). See "CMS
Energy Trusts," "Description of Securities -- Trust Preferred Securities" and
"Description of Securities -- The Guarantees." In future filings under the
Exchange Act, there will be an audited footnote to our annual financial
statements stating that the Trusts are wholly-owned by CMS Energy, that the sole
assets of the Trusts are the Senior Debentures or the Subordinated Debentures of
CMS Energy having a specified aggregate principal amount, and, considered
together, the back-up undertakings, including the Guarantees, constitute a full
and unconditional guarantee by CMS Energy of the Trusts' obligations under the
Trust Preferred Securities issued by the Trusts.
We are "incorporating by reference" information into this registration
statement. This means that we are disclosing important information to you when
we refer you to another document that we filed separately with the SEC.
Information incorporated by reference is considered to be part of this
prospectus, unless the information is updated by information in this prospectus.
This prospectus incorporates by reference the documents listed below. We
encourage you to read these additional documents because these documents contain
important information about us and our finances. We also encourage you to review
the discussion of our Recent Developments on pages 3-4 of this prospectus that
should be read in conjunction with the audited financial statements incorporated
herein by reference.
<TABLE>
<CAPTION>
SEC FILINGS
(FILE NO. 1-9513) PERIOD/DATE
------------------------------- ---------------------------------------
<S> <C>
- Registration Statement on Form November 21, 1996.
8-B/A
- Annual Report on Form 10-K Year ended December 31, 1999.
- Quarterly Reports on Form 10-Q Quarters ended March 31, 2000, June
30, 2000 and September 30, 2000.
- Current Reports on Form 8-K Filed February 1, 2000, May 1, 2000,
June 5, 2000, July 6, 2000, August 15,
2000, October 2, 2000, October 12,
2000, November 1, 2000 and December 11,
2000.
</TABLE>
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<PAGE> 6
The documents we have filed with the SEC after the date of this prospectus
and prior to the termination of the offering made by this prospectus are also
incorporated by reference into this prospectus. Any statement contained in such
document will be deemed to be modified or superseded for purposes of this
prospectus to the extent that a statement contained in this prospectus or any
other subsequently filed document modifies or supersedes such statement.
This prospectus, which is part of the offering registration statement, does
not contain all of the information found in the offering registration statement
including various exhibits and schedules. We are incorporating by reference the
offering registration statement.
You may request copies of these filings, including the registration
statement, at no cost, by writing or telephoning CMS Energy at the following
address:
CMS Energy Corporation
Attn: Office of the Secretary
Fairlane Plaza South, Suite 1100
330 Town Center Drive
Dearborn, Michigan 48126
Telephone: (313) 436-9200
You should rely only on the information contained in or incorporated by
reference in this Prospectus. We have not authorized anyone to provide you with
information that is different from this information.
We also intend to enhance our long-term growth through an active portfolio
management program that entails the ongoing sale of assets. We expect to
reinvest the proceeds from this program in assets having greater potential for
synergies with our existing or planned assets. In particular, we are reviewing
our options regarding certain assets performing below prior expectations,
including generating assets in Argentina. We also continue to seek improvement
in the operating efficiency and profitability of all assets retained in our
portfolio.
CMS ENERGY CORPORATION
We are a leading diversified energy company operating in the United States
and around the world. Our two principal subsidiaries are Consumers Energy and
CMS Enterprises. Consumers is a public utility that provides natural gas and
electricity to almost six million of the nine and one-half million residents in
Michigan's Lower Peninsula. Enterprises, through subsidiaries, is engaged in
several domestic and international energy businesses including:
- Natural gas transmission, storage and processing;
- Independent power production;
- Oil and gas exploration and production;
- International energy distribution; and
- Energy marketing, services and trading.
RECENT DEVELOPMENTS
On November 15, 2000, Consumers issued $125 million of Floating Rate Senior
Notes due November 15, 2001 and $100 million of Floating Rate Senior Notes due
November 15, 2002. Consumers used the proceeds to repay certain indebtedness
outstanding under a short-term line of credit with Bank One, N.A, indebtedness
under a revolving credit agreement with Bank One, N.A. and others, and other
various lines of credit.
On November 22, 2000, we filed a Registration Statement on Form S-1 for our
initial public offering of common stock in CMS Oil and Gas. The filing added
$300 million of CMS Oil and Gas common stock to $100 million already on file
under a previous
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registration for a total of up to $400 million of CMS Oil and Gas common stock
to be offered for sale. We expect to commence the offering during the first
quarter of 2001.
On December 11, 2000 we announced that we had written down during the
fourth quarter 2000 our entire investment in Loy Yang A, a 2000 megawatt power
plant and associated coal mine in Victoria, Australia. We have a 50% ownership
interest in Loy Yang A. The write down, which will have the effect of reducing
equity by approximately $267 million after taxes and currency translation, is a
result of our inability to attract a serious purchaser for the plant and the
probability of continued unfavorable electric market prices in Victoria,
Australia, which determine Loy Yang A's sales revenue. We intend to ultimately
sell our interest in Loy Yang A.
CMS ENERGY TRUSTS
CMS Energy Trust I, CMS Energy Trust II and CMS Energy Trust III are
statutory business trusts formed under the Delaware Business Trust Act (the
"Trust Act") (each, a "Trust" and collectively, the "Trusts") pursuant to: (i) a
trust agreement executed by CMS Energy, as sponsor, and the trustees of the
Trusts (the "CMS Trustees"); and (ii) the filing of a certificate of trust with
the Secretary of State of the State of Delaware. At the time of public issuance
of Trust Preferred Securities, each trust agreement was amended and restated in
its entirety (as so amended and restated, the "Trust Agreement") and was
qualified as an indenture under the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"). CMS Energy directly acquired common securities of each
Trust (the "Common Securities" and, together with the Trust Preferred
Securities, the "Trust Securities") in an aggregate liquidation amount equal to
approximately 3% of the total capital of the Trust. Each Trust exists for the
exclusive purposes of:
- issuing the Trust Preferred Securities and Common Securities
representing undivided beneficial interests in the assets of
the Trust;
- investing the gross proceeds of the Trust Securities in the
Senior Debentures or Subordinated Debentures; and
- engaging in only those other activities necessary or
incidental thereto. Each Trust has a term of approximately 30
years, but may terminate earlier as provided in the Trust
Agreement.
The undivided common beneficial interests in the Trusts is owned by CMS
Energy. The proceeds from the offering of the Trust Preferred Securities and the
sale of the Common Securities was contributed by the Trusts to purchase from CMS
Energy Subordinated Debentures in an aggregate principal amount equal to the
aggregate liquidation preference of the Trust Securities, bearing interest at an
annual rate equal to the annual distribution rate of such Trust Securities and
having certain redemption terms which correspond to the redemption terms for the
Trust Securities. The Subordinated Debentures rank subordinate in right of
payment to all of CMS Energy's Senior Indebtedness (as defined herein).
Distributions on the Trust Securities may not be made unless the Trust receives
corresponding interest payments on the Subordinated Debentures from CMS Energy.
CMS Energy has irrevocably guaranteed, on a subordinated basis, and to the
extent set forth therein, with respect to each of the Trust Securities, the
payment of distributions, the redemption price, including all accrued or
deferred and unpaid distributions, and payment on liquidation, but only to the
extent of funds on hand. Each Guarantee is unsecured and is subordinate to, all
Senior Indebtedness of CMS Energy. Upon the occurrence of certain events
(subject to the conditions to be described in an accompanying prospectus
supplement) the Trust may be liquidated and the holders of the Trust Securities
could receive Subordinated Debentures in lieu of any liquidating cash
distribution.
Pursuant to the Trust Agreement, the number of CMS Trustees is initially
three. Two of the CMS Trustees (the "Administrative Trustees") are persons who
are employees or officers of or who are affiliated with CMS Energy. The third
trustee is a financial institution that is unaffiliated with CMS Energy, which
trustee will serve as property trustee under the Trust Agreement and as
indenture trustee for the purposes of compliance with the provisions of the
Trust Indenture Act (the "Property Trustee"). Initially, The Bank of New York, a
New York banking corporation, will be the Property Trustee until removed or
replaced by the holder of the Common Securities. For the purpose of compliance
with the provisions of the Trust Indenture Act, The Bank of New York will also
act as trustee ("Guarantee Trustee"). The Bank of New York (Delaware) will act
as the Delaware Trustee for the purposes of the Trust Act, until removed or
replaced by the holder of the Common Securities. See "Description of Securities
-- The Guarantees."
Each Property Trustee holds title to the applicable Debt Securities for the
benefit of the holders of the Trust Securities and each Property Trustee has the
power to exercise all rights, powers and privileges under the applicable
indenture (as defined herein) as the holder of the Debt Securities. In addition,
each Property Trustee maintains exclusive control of a segregated non-interest
bearing bank account (the "Property Account") to hold all payments made in
respect of the Debt Securities for the benefit of the holders of the Trust
Securities. Each Property Trustee will make payments of distributions and
payments on liquidation, redemption and otherwise to the holders of the Trust
Securities out of funds from the Property Account. The Guarantee Trustees holds
the Guarantees for the benefit of
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the holders of the Trust Securities. CMS Energy, as the direct holder of all the
Common Securities, will have the right to appoint, remove or replace any CMS
Trustee and to increase or decrease the number of CMS Trustees; provided, that
the number of CMS Trustees shall be at least three, a majority of which shall be
Administrative Trustees. CMS Energy will pay all fees and expenses related to
the Trusts and the offering of the Trust Securities.
The rights of the holders of the Trust Preferred Securities, including
economic rights, rights to information and voting rights, are set forth in the
Trust Agreement, the Trust Act and the Trust Indenture Act.
The trustee in the State of Delaware is The Bank of New York (Delaware),
White Clay Center, Route 273, Newark, Delaware 19711.
The principal place of business of each Trust shall be c/o CMS Energy
Corporation, Fairlane Plaza South, 330 Town Center Drive, Suite 1100, Dearborn,
Michigan 48126-2712.
USE OF PROCEEDS
The proceeds received by each of the Trusts from the sale of its Trust
Preferred Securities or the Common Securities will be invested in the
Subordinated Debentures. As will be more specifically set forth in the
applicable prospectus supplement, We will use such borrowed amounts and the net
proceeds from the sale of CMS Energy Common Stock, Stock Purchase Contracts,
Stock Purchase Units and Subordinated Debentures offered hereby for our general
corporate purposes, including capital expenditures, investment in subsidiaries,
working capital and repayment of debt.
RATIO OF EARNINGS TO FIXED CHARGES AND
RATIO OF EARNINGS TO FIXED CHARGES AND PREFERRED STOCK DIVIDENDS
The ratio of earnings to fixed charges and the ratio of earnings to fixed
charges and preferred stock dividends for each of the years ended December 31,
1994 through 1999, and for the nine months ended September 30, 2000, are as
follows:
<TABLE>
<CAPTION>
YEAR ENDED DECEMBER 31,
NINE MONTHS ENDED -----------------------
SEPTEMBER 30, 2000 1999 1998 1997 1996 1995
------------------ ---- ---- ---- ---- ----
<S> <C> <C> <C> <C> <C> <C>
Ratio of earnings to fixed charges.......... 1.31 1.38 1.59 1.78 1.96 1.90
Ratio of earnings to fixed charges and
preferred stock dividends................. 1.25 1.28 1.43 1.59 1.75 1.74
</TABLE>
For the purpose of computing such ratios, earnings represent net income
before income taxes, net interest charges and the estimated interest portion of
lease rentals.
DESCRIPTION OF SECURITIES
INTRODUCTION
Specific terms of the shares of Common Stock, par value $.01 per share ("CMS
Energy Common Stock"), unsecured subordinated debt securities (the "Subordinated
Debentures" or "Debt Securities") consisting of debentures, convertible
debentures, notes and other unsecured evidence of indebtedness, Stock Purchase
Contracts (the "Stock Purchase Contracts") to purchase CMS Energy Common Stock,
Stock Purchase Units (the "Stock Purchase Units"), each representing ownership
of a Stock Purchase Contract and Debt Securities, or Trust Preferred Securities
or debt obligations of third parties, including U.S. Treasury Securities,
securing the holder's obligation to purchase the CMS Energy Common Stock under
the Stock Purchase Contract, or any combination of the foregoing, irrevocable
guarantees (individually a "Guarantee" and collectively "Guarantees") of CMS
Energy, on a subordinated basis, and to the extent set forth therein, with
respect to each of the Trust Securities, the payment of distributions, the
redemption price, including all accrued or deferred and unpaid distributions,
and payment on liquidation, but only to the extent of fund on hand, and trust
preferred securities (the "Trust Preferred Securities") representing preferred
undivided beneficial interests in the assets of the Trust, in respect of which
this prospectus is being delivered (collectively, the "Offered Securities"),
will be set forth in an accompanying prospectus supplement or supplements,
together with the terms of the offering of the Offered Securities, the initial
price thereof and the net proceeds from the sale thereof. The prospectus
supplement will set forth with regard to the particular Offered Securities,
without
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limitation, the following: (i) in the case of Debt Securities, the designation,
aggregate principal amount, denomination, maturity, premium, if any, any
exchange, conversion, redemption or sinking fund provisions, interest rate
(which may be fixed or variable), the time or method of calculating interest
payments, the right of CMS Energy, if any, to defer payment or interest on the
Debt Securities and the maximum length of such deferral, put options, if any,
public offering price, ranking, any listing on a securities exchange and other
specific terms of the offering; (ii) in the case of CMS Energy Common Stock, the
designation, number of shares, public offering price and other specific terms of
the Offering, from the sale thereof; (iii) in the case of Trust Preferred
Securities, the designation, number of shares, liquidation preference per
security, initial public offering price, any listing on a securities exchange,
dividend rate (or method of calculation thereof), dates on which dividends shall
be payable and dates from which dividends shall accrue, any voting rights, any
redemption, exchange, conversion or sinking fund provisions and any other
rights, preferences, privileges, limitations or restrictions relating to a
specific series of the Trust Preferred Securities including a description of the
Guarantee (as defined herein), as the case may be; and (iv) in the case of Stock
Purchase Units, the specific terms of the Stock Purchase Contracts and any Debt
Securities, Trust Preferred Securities, or debt obligations of third parties
securing the holders obligation to purchase CMS Energy Common Stock under the
Stock Purchase Contracts, and the terms of the offering and sale thereof.
CAPITAL STOCK
The following summary 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 the Restated Articles of Incorporation of CMS Energy (the
"Articles of Incorporation") and the By-Laws of CMS Energy, copies of which are
filed as exhibits to the Registration Statement of which this prospectus is a
part, and by express reference to the Registration Statement on Form 8-B/A,
which is incorporated into this prospectus by reference. See "Where to Find More
Information" herein.
The authorized capital stock of CMS Energy consists of 250 million shares of
CMS Energy Common Stock, 60 million shares of Class G Common Stock, no par value
("Class G Common Stock") and 10 million shares of CMS Energy Preferred Stock,
$.01 par value ("Preferred Stock"). The CMS Energy Common Stock and the Class G
Common Stock are sometimes together referred to herein as the "Common Stock."
Currently there is no Class G Common Stock issued and outstanding.
COMMON STOCK
When issued and outstanding, the 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, have been attributed to the "Consumers
Gas Group"). The CMS Energy Common Stock is intended to reflect the performance
of all businesses of CMS Energy and its subsidiaries, including the businesses
of the Consumers Gas Group, except for the interest in the Consumers Gas Group
attributable to any outstanding shares of Class G Common Stock.
DIVIDEND RIGHTS AND POLICY; RESTRICTIONS ON DIVIDENDS
Dividends on the CMS Energy Common Stock are 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 any outstanding shares of the Class G Common
Stock, and other factors. Dividends are payable out of the assets of CMS Energy
legally available therefore, including the Available Class G Dividend Amount (as
defined in the Articles of Incorporation).
When issued and outstanding, dividends on the Class G Common Stock are paid
at the discretion of the Board of Directors based primarily upon the earnings
and financial condition of the Consumers Gas Group, and, to a lesser extent, CMS
Energy as a whole. Dividends are payable out of the lesser of (i) the assets of
CMS Energy legally available therefore and (ii) the Available Class G Dividend
Amount. Although the Available Class G Dividend Amount is intended to reflect
the amount available for dividends to holders of any outstanding Class G Common
Stock, it is also legally available for dividends to holders of CMS Energy
Common Stock.
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 any outstanding Class G Common Stock, or to the holders of both
of such classes in equal or unequal amounts.
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CMS Energy is a holding company and its assets consist primarily of
investments in its subsidiaries. As a holding company with no significant
operations of its own, the principal sources of its funds are dependent
primarily upon the earnings of its subsidiaries (in particular, Consumers),
borrowings and sales of equity. CMS Energy's ability to pay dividends, including
dividends on CMS Energy Common Stock and any outstanding Class G Common Stock,
is dependent primarily upon the earnings and cash flows of its subsidiaries and
the distribution or other payment of such earnings to CMS Energy in the form of
dividends, loans or advances and repayment of loans and advances from CMS
Energy. 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. CMS Energy's subsidiaries are separate and distinct legal
entities and have no obligation, contingent or otherwise, to pay any amounts on
the capital stock of CMS Energy or to make any funds available therefor, whether
by dividends, loans or other payments.
Dividends on capital stock of CMS Energy are limited by Michigan law to
legally available assets of CMS Energy. Distributions on Common Stock may be
subject to the rights of the holders, if any, of the CMS Energy Preferred Stock
including the currently issued and outstanding Series A Mandatorily Convertible
Preferred Stock. As long as the Series A Mandatorily Convertible Preferred Stock
is outstanding, CMS Energy may not pay dividends on its Common Stock unless
certain conditions are met including, but not limited to, that dividends on the
Series A Preferred Stock have been paid. See "Preferred Stock - Dividends".
There are restrictions on CMS Energy's ability to pay dividends contained in
certain revolving credit and term loan agreements, specifically the indenture
dated as of September 15, 1992, as amended and supplemented, between CMS Energy
and NBD Bank, as Trustee, and the indenture dated as of January 15, 1994, as
amended and supplemented, between CMS Energy and The Chase Manhattan Bank, as
Trustee. A discussion of specific restrictions on CMS Energy's ability to pay
dividends will be set forth in an accompanying prospectus supplement pursuant to
which convertible Senior Debentures, Subordinated Debentures, convertible Trust
Preferred Securities, Stock Purchase Contracts, Stock Purchase Units, or CMS
Energy Common Stock are offered.
VOTING RIGHTS
The holders of CMS Energy Common Stock vote with the holders of outstanding
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 or special rights of such class
of stock, and to authorize any amendment to the Articles of Incorporation that
would increase or decrease the aggregate number of authorized shares of such
class (except pursuant to Section 303 of the Michigan Business Corporation Act,
which, under certain circumstances, would enable the Board of Directors to
increase the number of authorized shares to satisfy the exchange features of the
Common Stock described below) 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. 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
The Articles of Incorporation provide that holders of Common Stock will 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,
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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 CMS Energy,
whether voluntary or involuntary, after payment or provision for payment of the
debts and other liabilities of CMS Energy and after there shall have been paid
or set apart for the holders of Preferred Stock the full preferential amounts
(including any accumulated and unpaid dividends) to which they are entitled, the
holders of CMS Energy Common Stock and any future holders of issued and
outstanding shares of Class G Common Stock shall be entitled to receive, on a
per share basis, the same portion of all of the assets of CMS Energy 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 CMS Energy into or with any other corporation, nor
the merger or consolidation of any other corporation into or with CMS Energy nor
any sale, transfer or lease of all or any part of the assets of CMS Energy,
shall be deemed to be a dissolution, liquidation or winding up for the purposes
of this provision.
Because CMS Energy has subsidiaries which have debt obligations and other
liabilities of their own, CMS Energy'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 CMS Energy
may itself be a creditor with recognized claims against the subsidiary.
SUBDIVISION OR COMBINATION
If CMS Energy subdivides (by stock split, stock dividend or otherwise) or
combines (by reverse stock split or otherwise), the voting and liquidation
rights of shares of CMS Energy Common Stock relative to outstanding shares of
Class G Common Stock will be appropriately adjusted so as to avoid any dilution
in aggregate voting or liquidation rights of either class of Common Stock. For
example, in case CMS Energy were to effect a two-for-one split of Class G Common
Stock, the per share liquidation rights of CMS Energy Common Stock would be
multiplied by two in order to avoid dilution in the aggregate liquidation rights
of holders of CMS Energy Common Stock and each post-split share of Class G
Common Stock would have one-half of a vote on matters voted upon by the
Shareholders.
EXCHANGES
The Articles of Incorporation do not provide for either the mandatory or
optional exchange or redemption of CMS Energy Common Stock but do provide that
Class G Common Stock may be exchanged for CMS Energy Common Stock as described
in the Registration Statement on Form 8-B/A incorporated by reference herein. If
Class G Shares are issued and outstanding in the future, CMS Energy cannot
predict the impact of the potential for such exchanges on the market prices of
CMS Energy Common Stock.
CMS Energy may exchange future issued and outstanding shares of Class G
Common Stock for a proportionate number of shares of a subsidiary that holds all
the assets and liabilities attributed to the Consumers Gas Group, and no other
assets and liabilities. If CMS Energy transfers all or substantially all of the
properties and assets attributed to the Consumers Gas Group, CMS Energy is
required, subject to certain exceptions and conditions, to exchange each
outstanding share of Class G Common Stock for a number of shares of CMS Energy
Common Stock having a Fair Market Value (defined in the Articles of
Incorporation) equal to 110% of the Fair Market Value of one share of Class G
Common Stock.
In the event any shares of Class G Common Stock are issued and outstanding,
CMS Energy may, in the sole discretion of the Board of Directors, at any time,
exchange each outstanding share of Class G Common Stock for a number of 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.
CMS Energy cannot predict the impact of the potential for such exchanges on
the market prices of the CMS Energy Common Stock.
TRANSFER AGENT AND REGISTRAR
CMS Energy Common Stock is transferable at Consumers Energy Company, 212 W.
Michigan Avenue, Jackson, MI 49201. CMS Energy is the registrar and transfer
agent for CMS Energy Common Stock.
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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, voting rights, if any, and
qualifications, limitations or restrictions thereof, as shall be stated in a
resolution providing for the issue of any such series adopted by CMS Energy's
Board of Directors. The Articles of Incorporation provide that 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, 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. The future issuance of Preferred Stock may have the effect of delaying,
deterring or preventing a change in control of CMS Energy.
SERIES A MANDATORILY CONVERTIBLE PREFERRED STOCK
The Articles of Incorporation establish one series of preferred stock
designated as "Series A Mandatorily Convertible Preferred Stock" consisting of
125,000 shares with a liquidation preference of $1,000 per share. The Series A
Preferred Stock ranks prior to any series of our Common Stock as to the payment
of dividends and distribution of assets upon dissolution, liquidation or winding
up of CMS Energy, and is convertible into shares of Common Stock. The holders of
the Series A Preferred Stock have no preemptive rights.
DIVIDENDS
Holders of Series A Preferred Stock are not entitled to receive dividends
prior to the rate reset date. The rate reset date is the earlier of the date
when remarketing of the Series A Preferred Stock begins or the date that there
is a failure to remarket the Series A Preferred Stock because it is legally
impossible. After such date, dividends on the Series A Preferred Stock are
payable quarterly in cash at the reset dividend rate. The reset dividend rate
per annum for each dividend period beginning on the rate reset date will
generally be equal to $1,000 times the sum of (1) 7.0% plus (2) the annual
dividend yield of a share of our Common Stock.
Dividends on the Series A Preferred Stock are cumulative and accrue to the
holders of Series A Preferred Stock whether or not they are declared and,
whether or not our earnings or financial condition are sufficient to pay such
dividends in whole or in part.
As long as any Series A Preferred Stock is outstanding, we may not pay
dividends or distributions on, or purchase, redeem or otherwise acquire, subject
to certain exceptions, shares of our Common Stock unless (1) full dividends on
the Series A Preferred Stock have been paid or set aside for payment, (2) all
required amounts for purchase or retirement of, or sinking funds for,
outstanding shares of Series A Preferred Stock have been paid or set aside and
(3) we are not in default of any of our obligations to redeem the Series A
Preferred Stock.
LIQUIDATION PREFERENCE
In the event of any voluntary or involuntary liquidation, dissolution or
winding up our affairs, holders of Series A Preferred Stock will be entitled to
be paid in full in cash the amount of $1,000 per share as well as all accrued
dividends to the date of the distribution or payment, whether or not earned or
declared. However, this payment right is subject to the rights of any senior
stock or parity stock that is outstanding at that time. If, upon any
liquidation, dissolution or winding up of our affairs, Series A Preferred Stock
holders and parity stock holders are not paid in full then they shall share the
amount paid out in proportion to the full amounts they would have been entitled
to.
VOTING RIGHTS
The holders of the Series A Preferred Stock are not entitled to vote, except
as set forth below or as expressly required by applicable law.
So long as any shares of Series A Preferred Stock are outstanding, the
affirmative vote or consent of the holders of at least a majority of the
outstanding shares of Series A Preferred Stock will be required for any
amendment of our Articles of Incorporation which will adversely affect the
powers, preferences, privileges or rights of the Series A Preferred Stock. In
addition, the affirmative vote or consent of the holders of a least a majority
of the outstanding shares of Series A Preferred Stock will be required to
authorize, issue or increase the authorized amount of any stock of any class or
series or any security convertible into stock of any class or series
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ranking prior to the Series A Preferred Stock, or to authorize our merger or
consolidation with or into another corporation or a statutory share exchange
with another corporation, subject to certain exceptions.
REDEMPTION
At any time following a redemption event and prior to a rate reset date, we
will have the right to redeem all outstanding shares of Series A Preferred Stock
at a price of $1,000 per share, plus accrued and unpaid dividends. A redemption
event means the occurrence of any of the following:
- our consolidation or merger with or into another entity, or a statutory
exchange of securities with another entity, unless in connection with
such transaction, our outstanding shares of Common Stock immediately
preceding the transaction are converted into, exchanged for or otherwise
represent at least a majority of the outstanding common stock of the
surviving or resulting entity; or
- the sale or conveyance of all or substantially all of our assets to
another entity, other than our subsidiary.
MANDATORY CONVERSION
Unless previously converted at the option of the holder as described in the
next paragraph, on the third anniversary of the rate reset date, each
outstanding share of Series A Preferred Stock will automatically convert into a
number of shares of our common stock at the "CMS MANDATORY CONVERSION RATE" plus
accrued and unpaid dividends. The CMS mandatory conversion rate equals the
following number of shares of our Common Stock per share of Series A Preferred
Stock, subject to adjustment:
- if the average trading price of a share of our Common Stock for the
20-trading day period immediately prior to the conversion date equals or
exceeds the product of the reset price and 1.10 (the "CMS THRESHOLD
APPRECIATION PRICE"), the quotient of $1,000 divided by the CMS
threshold appreciation price;
- if the average trading price of a share of our Common Stock for the
20-trading day period immediately prior to the conversion date is less
than the CMS threshold appreciation price but is greater than the reset
price, the quotient of $1,000 divided by the average trading price of a
share of our Common Stock for the 20-trading day period immediately
prior to the conversion date; and
- if the average trading price of a share of our Common Stock for the
20-trading day period immediately prior to the conversion date is less
than or equal to the reset price, the quotient of $1,000 divided by the
reset price.
CONVERSION AT THE OPTION OF THE HOLDER
At any time before the third anniversary of the rate reset date, each
outstanding share of Series A Preferred Stock is convertible at the option of
the holder into 24.779 shares of our Common Stock, subject to certain
anti-dilution adjustments and adjustment on the rate reset date.
PRIMARY SOURCE OF FUNDS OF CMS ENERGY; RESTRICTIONS ON SOURCES OF DIVIDENDS
The ability of CMS Energy to pay (i) dividends on its capital stock and (ii)
its indebtedness, including the Debt Securities, 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 MPSC.
Consumers' ability to pay dividends is restricted by its First Mortgage Bond
Indenture (the "Mortgage Indenture") and its Articles of Incorporation
("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
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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%.
In addition, Consumers' Indenture dated January 1, 1996, between Consumers
and Bank of New York as Trustee ("Indenture"), and certain Preferred Securities
Guarantees by Consumers dated January 23, 1996, September 11, 1997 and October
25, 1999 (collectively the "Consumers Preferred Securities Guarantees"), in
connection with which the 8.36% Trust Preferred Securities of Consumers Power
Company Financing I, the 8.20% Trust Securities of Consumers Energy Financing II
and the 9.25% Trust Originated Preferred Securities of Consumers Energy
Financing III (collectively the "Consumers Trust Preferred Securities") were
issued, provide that Consumers shall not declare or pay any dividend on, make
any distributions with respect to, or redeem, purchase or make a liquidation
payment with respect to, any of its capital stock if: (i) there shall have
occurred any event that would constitute an event of default under the Indenture
or the trust agreements pursuant to which the Consumers Trust Preferred
Securities were issued, (ii) a default with respect to its payment of any
obligations under the Consumers Preferred Securities Guarantees or certain
Consumers common stock guarantees, or (iii) it gives notice of its election to
extend the interest payment period on the subordinated notes issued under the
Indenture, at any time for up to 20 consecutive quarters provided, however,
Consumers may declare and pay stock dividends where the dividend stock is the
same stock as that on which the dividend is being paid.
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. 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.
DEBT SECURITIES
The Debt Securities offered by this prospectus will be unsecured obligations
of CMS Energy and will be subordinated debt. Subordinated Debentures will be
issued under a subordinated debt indenture. The subordinated debt indenture is
sometimes referred to in this prospectus as the "indenture".
The following briefly summarizes the material provisions of the indenture
and the Debt Securities. You should read the more detailed provisions of the
indenture, including the defined terms, for provisions that may be important to
you. You should also read the particular terms of a series of Debt Securities,
which will be described in more detail in the applicable prospectus supplement.
Copies of the indentures may be obtained from CMS Energy or the applicable
trustee.
Unless otherwise provided in the applicable prospectus supplement, the
trustee under the indenture will be The Bank of New York.
GENERAL
The indenture provides that Debt Securities of CMS Energy may be issued in
one or more series, with different terms, in each case as authorized from time
to time by CMS Energy.
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Federal income tax consequences and other special considerations applicable
to any Debt Securities issued by CMS Energy at a discount will be described in
the applicable prospectus supplement.
Because CMS Energy is a holding company, the claims of creditors of CMS
Energy's subsidiaries will have a priority over CMS Energy's equity rights and
the rights of CMS Energy's creditors, including the holders of Debt Securities,
to participate in the assets of the subsidiary upon the subsidiary's
liquidation.
The applicable prospectus supplement relating to any series of Debt
Securities will describe the following terms, where applicable:
- the title of the Debt Securities;
- whether the Debt Securities will be subordinated debt;
- the total principal amount of the Debt Securities;
- the percentage of the principal amount at which the Debt Securities will
be sold and, if applicable, the method of determining the price;
- the maturity date or dates;
- the interest rate or the method of computing the interest rate;
- the date or dates from which any interest will accrue, or how such date
or dates will be determined, and the interest payment date or dates and
any related record dates;
- the location where payments on the Debt Securities will be made;
- the terms and conditions on which the Debt Securities may be redeemed at
the option of CMS Energy;
- any obligation of CMS Energy to redeem, purchase or repay the Debt
Securities at the option of a holder upon the happening of any event and
the terms and conditions of redemption, purchase or repayment;
- any provisions for the discharge of CMS Energy's obligations relating to
the Debt Securities by deposit of funds or United States government
obligations;
- whether the Debt Securities are to trade in book-entry form and the
terms and any conditions for exchanging the global security in whole or
in part for paper certificates;
- any material provisions of the applicable indenture described in this
prospectus that do not apply to the Debt Securities;
- any additional amounts with respect to the Debt Securities that CMS
Energy will pay to a non-United States person because of any tax,
assessment or governmental charge withheld or deducted and, if so, any
option of CMS Energy to redeem the Debt Securities rather than paying
these additional amounts; and
- any other specific terms of the Debt Securities.
CONCERNING THE TRUSTEE
The Bank of New York, the trustee under the indenture, is one of a number of
banks with which CMS Energy and its subsidiaries maintain ordinary banking
relationships, including credit facilities.
EXCHANGE AND TRANSFER
Debt Securities may be presented for exchange and registered Debt Securities
may be presented for registration of transfer at the offices and subject to the
restrictions set forth therein and in the applicable prospectus supplement
without service charge, but upon
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payment of any taxes or other governmental charges due in connection therewith,
subject to any limitations contained in the applicable indenture. Debt
Securities in bearer form and the coupons appertaining thereto, if any, will be
transferable by delivery.
PAYMENT
Distributions on the Debt Securities in registered form will be made at the
office or agency of the applicable trustee in the Borough of Manhattan, the City
of New York or its other designated office. However, at the option of CMS
Energy, payment of any interest may be made by check or by wire transfer.
Payment of any interest due on Debt Securities in registered form will be made
to the persons in whose name the Debt Securities are registered at the close of
business on the record date for such interest payments. Payments made in any
other manner will be specified in the prospectus supplement.
EVENTS OF DEFAULT
The indenture provides that events of default regarding any series of Debt
Securities will be:
- failure to pay required interest on any Debt Security of such series for
30 days;
- failure to pay principal other than a scheduled installment payment or
premium, if any, on any Debt Security of such series when due;
- failure to make any required scheduled installment payment for 30 days
on Debt Securities of such series;
- failure to perform for 90 days after notice any other covenant in the
indenture other than a covenant included in the indenture solely for the
benefit of a series of Debt Securities other than such series;
- certain events of bankruptcy or insolvency, whether voluntary or not; or
- entry of final judgments against CMS Energy or Consumers for more than
$25,000,000 which remain undischarged or unbonded for 60 days or a
default resulting in the acceleration of indebtedness of CMS Energy or
Consumers of more than $25,000,000, and the acceleration has not been
rescinded or annulled within 10 days after written notice of such
default as provided in the indenture.
Additional events of default may be prescribed for the benefit of the
holders of a particular series of Debt Securities and will be described in the
prospectus supplement relating to those Debt Securities.
If an event of default regarding Debt Securities of any series issued under
the indenture should occur and be continuing, either the trustee or the holders
of 25% in the principal amount of outstanding Debt Securities of such series may
declare each Debt Security of that series due and payable.
Holders of a majority in principal amount of the outstanding Debt Securities
of any series will be entitled to control certain actions of the trustee under
the indenture and to waive past defaults regarding such series. The trustee
generally will not be requested, ordered or directed by any of the holders of
Debt Securities, unless one or more of such holders shall have offered to the
trustee reasonable security or indemnity.
Before any holder of any series of Debt Securities may institute action for
any remedy, except payment on such holder's Debt Security when due, the holders
of not less than 25% in principal amount of the Debt Securities of that series
outstanding must request the trustee to take action. Holders must also offer and
give the satisfactory security and indemnity against liabilities incurred by the
trustee for taking such action.
CMS Energy is required to annually furnish the trustee a statement as to CMS
Energy's compliance with all conditions and covenants under the indenture. The
indenture provides that the trustee may withhold notice to the holders of the
Debt Securities of any series of any default affecting such series, except
payment on holders' Debt Securities when due, if it considers withholding notice
to be in the interests of the holders of the Debt Securities of such series.
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CONSOLIDATION, MERGER OR SALE OF ASSETS
The indenture provides that CMS Energy may consolidate with or merge into,
or sell, lease or convey its property as an entirety or substantially as an
entirety to, any other corporation if the new corporation assumes the
obligations of CMS Energy under the Debt Securities and the indenture and is
organized and existing under the laws of the United States of America, any U.S.
state or the District of Columbia.
MODIFICATION OF THE INDENTURE
The indenture permits CMS Energy and the trustee to enter into supplemental
indentures without the consent of the holders of the Debt Securities to
establish the form and terms of any series of securities under the indenture.
The indenture also permits CMS Energy and the trustee, with the consent of
the holders of at least a majority in total principal amount of the Debt
Securities of all series then outstanding and affected (voting as one class), to
change in any manner the provisions of the indenture or modify in any manner the
rights of the holders of the Debt Securities of each such affected series. CMS
Energy and the trustee may not, without the consent of the holder of each Debt
Security affected, enter into any supplemental indenture to:
- change the time of payment of the principal;
- reduce the principal amount of such Debt Security;
- reduce the rate or change the time of payment of interest on such Debt
Security;
- reduce the amount payable on any securities issued originally at a
discount upon acceleration or provable in bankruptcy; or
- impair the right to institute suit for the enforcement of any payment on
any Debt Security when due.
In addition, no such modification may reduce the percentage in principal
amount of the Debt Securities of the affected series, the consent of whose
holders is required for any such modification or for any waiver provided for in
the indenture.
Prior to the acceleration of the maturity of any Debt Security, the holders,
voting as one class, of a majority in total principal amount of the Debt
Securities with respect to which a default or event of default shall have
occurred and be continuing may on behalf of the holders of all such affected
Debt Securities waive any past default or event of default and its consequences,
except a default or an event of default in respect of a covenant or provision of
the indenture or of any Debt Security which cannot be modified or amended
without the consent of the holder of each Debt Security affected.
DEFEASANCE, COVENANT DEFEASANCE AND DISCHARGE
The indenture provides that, at the option of CMS Energy:
- CMS Energy will be discharged from all obligations in respect of the Debt
Securities of a particular series then outstanding (except for certain
obligations to register the transfer of or exchange the Debt Securities of
such series, to replace stolen, lost or mutilated Debt Securities of such
series, to maintain paying agencies and to maintain the trust described
below); or
- CMS Energy need not comply with certain restrictive covenants of the
relevant indenture (including those described under "Consolidation, Merger
or Sale of Assets").
If CMS Energy in each case irrevocably deposits in trust with the trustee
money, and/or securities backed by the full faith and credit of the United
States which, through the payment of the principal thereof and the interest
thereon in accordance with their terms, will provide money in an amount
sufficient to pay all the principal and interest on the Debt Securities of such
series on the stated maturities of such Debt Securities in accordance with the
terms thereof.
To exercise this option, CMS Energy is required to deliver to the trustee an
opinion of independent counsel to the effect that:
- the exercise of such option would not cause the holders of the Debt
Securities of such series to recognize income, gain or loss for United
States federal income tax purposes as a result of such defeasance, and
such holders will be subject to United States federal
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income tax on the same amounts, in the same manner and at the same times
as would have been the case if such defeasance had not occurred; and
- in the case of a discharge as described above, such opinion is to be
accompanied by a private letter ruling to the same effect received
from the Internal Revenue Service, a revenue ruling to such effect
pertaining to a comparable form of transaction published by the Internal
Revenue Service or appropriate evidence that since the date of the
applicable indenture there has been a change in the applicable federal
income tax law.
In the event:
- CMS Energy exercises its option to effect a covenant defeasance with
respect to the Debt Securities of any series as described above,
- the Debt Securities of such series are thereafter declared due and payable
because of the occurrence of any event of default other than an event of
default caused by failing to comply with the covenants which are defeased,
- the amount of money and securities on deposit with the relevant trustee
would be insufficient to pay amounts due on the Debt Securities of such
series at the time of the acceleration resulting from such event of
default,
CMS Energy would remain liable for such amounts.
GOVERNING LAW
The indenture and the Debt Securities will be governed by, and construed in
accordance with, the laws of the State of Michigan unless the laws of another
jurisdiction shall mandatorily apply.
SUBORDINATION
The Debt Securities issued under the indenture and will rank subordinated
and junior in right of payment, to the extent set forth in the indenture, to all
"Senior Indebtedness" (as defined below) of CMS Energy.
If CMS Energy defaults in the payment of any distributions on any Senior
Indebtedness when it becomes due and payable after any applicable grace period,
then, unless and until the default is cured or waived or ceases to exist, CMS
Energy cannot make a payment on account of or redeem or otherwise acquire the
Debt Securities. The Debt Securities indenture provisions described in this
paragraph, however, do not prevent CMS Energy from making sinking fund payments
in Debt Securities acquired prior to the maturity of Senior Indebtedness or, in
the case of default, prior to such default and notice thereof. If there is any
insolvency, bankruptcy, liquidation or other similar proceeding relating to CMS
Energy, its creditors or its property, then all Senior Indebtedness must be paid
in full before any payment may be made to any holders of Debt Securities.
Holders of Debt Securities must return and deliver any payments received by
them, other than in a plan of reorganization or through a defeasance trust as
described above, directly to the holders of Senior Indebtedness until all Senior
Indebtedness is paid in full.
"Senior Indebtedness" means distributions on the following, whether
outstanding on the date of execution of the subordinated debt indenture or
thereafter incurred, created or assumed:
- indebtedness of CMS Energy for money borrowed by CMS Energy or evidenced
by debentures (other than the Debt Securities), notes, bankers'
acceptances or other corporate debt securities or similar instruments
issued by CMS Energy;
- obligations of CMS Energy with respect to letters of credit;
- all indebtedness of others of the type referred to in the two preceding
clauses assumed by or guaranteed in any manner by CMS Energy or in effect
guaranteed by CMS Energy; or
- renewals, extensions or refundings of any of the indebtedness referred to
in the preceding three clauses unless, in the case of any particular
indebtedness, renewal, extension or refunding, under the express
provisions of the instrument creating or evidencing the same or the
assumption or guarantee of the same, or pursuant to which the same is
outstanding, such indebtedness or such renewal, extension or refunding
thereof is not superior in right of payment to the subordinated debt
securities.
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The indenture does not limit the total amount of Senior Indebtedness that
may be issued. As of September 30, 2000, Senior Indebtedness of CMS Energy
totaled approximately $8.7 billion.
CERTAIN COVENANTS
If Debt Securities are issued to a Trust or a trustee of such Trust in
connection with the issuance of Trust Preferred Securities by such Trust, CMS
Energy will covenant that it will not, and it will not cause any of its
subsidiaries to, (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire, or make a liquidation payment with respect to, any of
CMS Energy's capital stock or (ii) make any payment of principal, interest or
premium, if any, on or repay or repurchase or redeem any debt securities
(including guarantees of indebtedness for money borrowed) of CMS Energy that
rank pari passu (in the case of Subordinated Debentures) with or junior (in the
case of Senior and Subordinated Debentures) to that Debt Security (other than
(a) any dividend, redemption, liquidation, interest, principal or guarantee
payment by CMS Energy where the payment is made by way of securities (including
capital stock) that rank pari passu with or junior to the securities on which
such dividend, redemption, interest, principal or guarantee payment is being
made, (b) payments under the Guarantees, (c) purchases of CMS Energy Common
Stock related to the issuance of CMS Energy Common Stock under any of CMS
Energy's benefit plans for its directors, officers or employees, (d) as a result
of a reclassification of CMS Energy's capital stock or the exchange or
conversion of one series or class of CMS Energy's capital stock for another
series or class of CMS Energy's capital stock and (e) the purchase of fractional
interests in shares of CMS Energy's capital stock pursuant to the conversion or
exchange provisions of such capital stock or the security being converted or
exchanged) if at such time (i) there shall have occurred any event of which CMS
Energy has actual knowledge that (a) with the giving of notice or the lapse of
time, or both, would constitute an event of default under the indenture and (b)
in respect of which CMS Energy shall not have taken reasonable steps to cure,
(ii) CMS Energy shall be in default with respect to its payment of any
obligations under the Guarantees or (iii) CMS Energy shall have given notice of
its selection of an Extension Period as provided in the indenture with respect
to the Debt Securities and shall not have rescinded such notice, or such
Extension Period, or any extension thereof, shall be continuing. CMS Energy will
also covenant (i) for so long as Trust Preferred Securities are outstanding, not
to convert the Debt Securities except pursuant to a notice of conversion
delivered to the Conversion Agent (as defined in the indenture) by a holder of
Trust Preferred Securities, (ii) to maintain directly or indirectly 100%
ownership of the Common Securities, provided that certain successor which are
permitted pursuant to the indenture may succeed to CMS Energy's ownership of the
Common Securities, (iii) not to voluntarily terminate, wind-up or liquidate such
Trust, except (a) in connection with a distribution of the Debt Securities to
the holders of the Trust Preferred Securities in liquidation of such Trust or
(b) in connection with certain mergers, consolidations or amalgamations
permitted by the Trust Agreement, (iv) to maintain the reservation for issuance
of the number of shares of CMS Energy Common Stock that would be required from
time to time upon the conversion of all the Debt Securities then outstanding,
(v) to use its reasonable efforts, consistent with the terms and provisions of
the Trust Agreement, to cause such Trust to remain classified as a grantor trust
and not as an association taxable as a corporation for United States federal
income tax purposes and (vi) to deliver shares of CMS Energy Common Stock upon
an election by the holders of the Trust Preferred Securities to convert such
Trust Preferred Securities into CMS Energy Common Stock.
As part of the Guarantees, CMS Energy will agree that it will honor all
obligations described therein relating to the conversion or exchange of the
Trust Preferred Securities into or for CMS Energy Common Stock or Debt
Securities.
CONVERSION RIGHTS
If the prospectus supplement provides, the Holders of Debt Securities may
convert such Debt Securities into CMS Energy Common Stock, as defined herein
(see "Description of Securities -- Common Stock"), at the option of the Holders
at the principal amount thereof, or of such portion thereof, at any time during
the period specified in the prospectus supplement, at the conversion price or
conversion rate specified in the prospectus supplement; except that, with
respect to any Debt Securities (or portion thereof) called for redemption, such
conversion right shall terminate at the close of business on the fifteenth day
prior to the date fixed for redemption of such Debt Security, unless CMS Energy
shall default in payment of the amount due upon redemption thereof.
The conversion privilege and conversion price or conversion rate will be
adjusted in certain events, including if CMS Energy:
- pays a dividend or makes a distribution in shares of CMS Energy Common
Stock;
- subdivides its outstanding shares of CMS Energy Common Stock into a
greater number of shares;
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- combines its outstanding shares of CMS Energy Common Stock into a smaller
number of shares;
- pays a dividend or makes a distribution on its CMS Energy Common Stock
other than in shares of its CMS Energy Common Stock;
- issues by reclassification of its shares of CMS Energy Common Stock any
shares of its capital stock;
- issues any rights or warrants to all holders of shares of its CMS Energy
Common Stock entitling them (for a period expiring within 45 days, or such
other period as may be specified in the prospectus supplement) to purchase
shares of CMS Energy Common Stock (or Convertible Securities as defined in
the indentures) at a price per share less than the Average Market Price
(as defined in the indentures) per share for such CMS Energy Common Stock;
or
- distributes to all holders of shares of its CMS Energy Common Stock any
assets or Debt Securities or any rights or warrants to purchase
securities, provided that no adjustment shall be made under last
two bullet points above if the adjusted conversion price would be higher
than, or the adjusted conversion rate would be less than, the conversion
price or conversion rate, as the case may be, in effect prior to such
adjustment.
CMS Energy may reduce the conversion price or increase the conversion rate,
temporarily or otherwise, by any amount but in no event shall such adjusted
conversion price or conversion rate result in shares of CMS Energy Common Stock
being issuable upon conversion of the Debt Securities if converted at the time
of such adjustment at an effective conversion price per share less than the par
value of the CMS Energy Common Stock at the time such adjustment is made. No
adjustments in the conversion price or conversion rate need be made unless the
adjustment would require an increase or decrease of at least one percent (1%) in
the initial conversion price or conversion rate. Any adjustment which is not
made shall be carried forward and taken into account in any subsequent
adjustment. The foregoing conversion provisions may be modified to the extent
set forth in the prospectus supplement.
TRUST PREFERRED SECURITIES
GENERAL
Each Trust may issue, from time to time, Trust Preferred Securities having
terms described in the applicable prospectus supplement. The Trust Agreement of
each Trust will authorize the establishment of no more than one series of Trust
Preferred Securities, having such terms, including distributions, redemption,
voting, liquidation rights and such other preferred, deferred or other special
rights or such rights or restrictions as shall be set forth therein or otherwise
established by the Trust Trustees. Reference is made to the prospectus
supplement relating to the Trust Preferred Securities for specific terms,
including:
- the distinctive designation and the number of Trust Preferred Securities
to be offered which will represent undivided beneficial interests in the
assets of the Trust;
- the annual distribution rate and the dates or date upon which such
distributions will be paid, provided, however distributions on the Trust
Preferred Securities will be paid quarterly in arrears to holders of Trust
Preferred Securities as of a record date on which the Trust Preferred
Securities are outstanding;
- whether holders' can convert the Trust Preferred Securities into shares of
CMS Energy Common Stock;
- whether distributions on Trust Preferred Securities would be deferred
during any deferral of interest payments on the Debt Securities, provided,
however that no such deferral, including extensions, if any, may exceed 20
consecutive quarters nor extend beyond the stated maturity date of the
Debt Securities, and at the end of any such deferrals, CMS Energy shall
make all interest payments then accrued or deferred and unpaid (including
any compounded interest);
- the amount of any liquidation preference;
- the obligation, if any, of the Trust to redeem Trust Preferred Securities
through the exercise of CMS Energy of an option on the corresponding Debt
Securities and the price or prices at which, the period or periods within
which and the terms and conditions upon which Trust Preferred Securities
shall be purchased or redeemed, in whole or in part, pursuant to such
obligation;
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- the period or periods within which and the terms and conditions, if any,
including the price or prices or the rate or rates of conversion or
exchange and the terms and conditions of any adjustments thereof, upon
which the Trust Preferred Securities shall be convertible or exchangeable
at the option of the holder of the Trust Preferred Securities or other
property or cash;
- the voting rights, if any, of the Trust Preferred Securities in addition
to those required by law and in the Trust Agreement, or set forth under a
Guarantee (as defined below);
- the additional payments, if any, which the Trust will pay as a
distribution as necessary so that the net amounts reserved by the Trust
and distributable to the holders of the Trust Preferred Securities, after
all taxes, duties, assessments or governmental charges of whatever nature
(other than withholding taxes) have been paid will not be less than the
amount that would have been reserved and distributed by the Trust, and the
amount the holders of the Trust Preferred Securities would have reserved,
had no such taxes, duties, assessments or governmental charges been
imposed;
- the terms and conditions, if any, upon which the Debt Securities may be
distributed to holders of Trust Preferred Securities; and
- any other relative rights, powers, preferences, privileges, limitations or
restrictions of the Trust Preferred Securities not inconsistent with the
Trust Agreement or applicable law. All Trust Preferred Securities offered
hereby will be irrevocably guaranteed by CMS Energy, on subordinated
basis, as applicable, and to the extent set forth below under "The
Guarantees." Any applicable federal income tax considerations applicable
to any offering of the Trust Preferred Securities will be described in the
prospectus supplement relating thereto. The aggregate number of Trust
Preferred Securities which the Trust shall have authority to issue will be
pursuant to the terms of the Trust Agreement.
EFFECT OF OBLIGATIONS UNDER THE DEBT SECURITIES
AND THE GUARANTEES
As set forth in the Trust Agreement, the sole purpose of the Trust is to
issue the Trust Securities evidencing undivided beneficial interests in the
assets of each of the Trusts, and to invest the proceeds from such issuance and
sale to acquire directly the Debt Securities from CMS Energy.
As long as payments of interest and other payments are made when due on the
Debt Securities, such payments will be sufficient to cover distributions and
payments due on the Trust Securities because of the following factors:
- the aggregate principal amount of Debt Securities will be equal to the
sums of the aggregate stated liquidation amount of the Trust Securities;
- the interest rate and the interest and other payment dates on the Debt
Securities will match the distribution rate and distribution and other
payment dates for the Trust Securities;
- CMS Energy shall pay all, and the Trust shall not be obligated to pay,
directly or indirectly, all costs, expenses, debt and obligations of the
Trust (other than with respect to the Trust Securities); and
- the Trust Agreement further provides that CMS Energy Trustees shall not
take or cause or permit the Trust to, among other things, engage in any
activity that is not consistent with the purposes of the Trust.
Payments of distributions (to the extent funds therefore are available) and
other payments due on the Trust Preferred Securities (to the extent funds
therefor are available) are guaranteed by CMS Energy as and to the extent set
forth under "The Guarantees" below. If CMS Energy does not make interest
payments on the Debt Securities purchased by the Trust, it is expected that the
Trust will not have sufficient funds to pay distributions on the Trust Preferred
Securities. The Guarantees do not apply to any payment of distributions unless
and until the Trust has sufficient funds for the payment of distributions and
other payments on the Trust Preferred Securities only if and to the extent that
CMS Energy has made a payment of interest or principal on the Debt Securities
held by the Trust as its sole asset. The Guarantees, when taken together with
CMS Energy's obligations under the Debt Securities and the indenture and its
obligations under the Trust Agreement, including its obligations to pay costs,
expenses, debts and liabilities of the Trust (other than with respect to the
Trust securities), provide a full and unconditional guarantee of amounts on the
Trust Preferred Securities.
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If CMS Energy fails to make interest or other payments on the Debt
Securities when due (taking account of any extension period), the Trust
Agreement provides a mechanism whereby the holders of the Trust Preferred
Securities may direct a Property Trustee to enforce its rights under the Debt
Securities. If a Property Trustee fails to enforce its rights under the Debt
Securities, a holder of Trust Preferred Securities may institute a legal
proceeding against CMS Energy to enforce a Property Trustee's rights under the
Debt Securities without first instituting any legal proceeding against a
Property Trustee or any other person or entity. Notwithstanding the foregoing,
if an event of default has occurred and is continuing under the Trust Agreement,
and such event is attributable to the failure of CMS Energy to pay interest or
principal on the Debt Securities on the date such interest or principal is
otherwise payable (or in the case of redemption on the redemption date), then a
holder of Trust Preferred Securities may institute legal proceedings directly
against CMS Energy to obtain payment. If CMS Energy fails to make payments under
the Guarantees, the Guarantees provide a mechanism whereby the holders of the
Trust Preferred Securities may direct a Guarantee Trustee to enforce its rights
thereunder. Any holder of Trust Preferred Securities may institute a legal
proceeding directly against CMS Energy to enforce a Guarantee Trustee's rights
under a Guarantee without first instituting a legal proceeding against the
Trust, the Guarantee Trustee, or any other person or entity.
THE GUARANTEES
Set forth below is a summary of information concerning the Guarantees which
will be executed and delivered by CMS Energy for the benefit of the holders,
from time to time, of the Trust Preferred Securities. Each Guarantee will be
qualified as an indenture under the Trust Indenture Act of 1939. The Bank of New
York, or an independent trustee, will act as indenture trustee under the
Guarantees for the purpose of compliance with the provisions of the Trust
Indenture Act of 1939. This summary does not purport to be complete and is
subject in all respects to the provisions of, and is qualified in its entirety
by reference to, the Guarantees, which is filed as an exhibit to the
Registration Statement of which this prospectus forms a part.
GENERAL
CMS Energy will irrevocably agree to pay in full, on a subordinated basis to
the extent set forth herein, the Guarantee Payments (as defined below) to the
holders of the Trust Preferred Securities, as and when due, regardless of any
defense, right of set-off or counterclaim that the Trust may have or assert
other than the defense of payment. The following payments with respect to the
Trust Preferred Securities, to the extent not paid by or on behalf of the Trust
(the "Guarantee Payments"), will be subject to a Guarantee: (i) any accumulated
and unpaid distributions required to be paid on the Trust Preferred Securities,
to the extent that the Trust has funds on hand available therefor at such time;
(ii) the redemption price with respect to any Trust Preferred Securities called
for redemption to the extent that the Trust has funds on hand available therefor
at such time; or (iii) upon a voluntary or involuntary dissolution, winding up
or liquidation of the Trust (unless the Debt Securities are distributed to
holders of the Trust Preferred Securities), the lesser of (a) the liquidation
distribution, to the extent that the Trust has funds on hand available therefor
at such time, and (b) the amount of assets of the Trust remaining available for
distribution to holders of Trust Preferred Securities. CMS Energy's obligation
to make a Guarantee Payment may be satisfied by direct payment of the required
amounts of CMS Energy to the holders of the Trust Preferred Securities or by
causing the Trust to pay such amount to such holders.
Such Guarantees will be irrevocable guarantees, on a subordinated basis, of
the Trust's obligations under the Trust Preferred Securities, but will apply
only to the extent that the Trust has funds sufficient to make such payments,
and are not guarantees of collection. If CMS Energy does not make interest
payments on the Debt Securities held by the Trust, the Trust will not be able to
pay distributions on the Trust Preferred Securities and will not have funds
legally available therefor.
CMS Energy has, through the Guarantees, the Trust Agreements, the Debt
Securities, the indenture and the Expense Agreement, taken together, fully,
irrevocably and unconditionally guaranteed all of the Trust's obligations under
the Trust Preferred Securities. No single document standing alone or operating
in conjunction with fewer than all of the other documents constitutes such
guarantee. It is only the combined operation of these documents that has the
effect of providing a full, irrevocable and unconditional guarantee of the
Trust's obligations under the Trust Preferred Securities.
CMS Energy has also agreed separately to irrevocably and unconditionally
guarantee the obligations of the Trust with respect to the Common Securities to
the same extent as the Guarantees, except that upon the occurrence and during
the continuation of a Trust Agreement Event of Default, holders of Trust
Preferred Securities shall have priority over holders of Common Securities with
respect to distributions and payments on liquidation, redemption or otherwise.
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CERTAIN COVENANTS OF CMS ENERGY
CMS Energy will covenant in each Guarantee that if and so long as (i) the
Trust is the holder of all the Debt Securities, (ii) a Tax Event (as defined in
the Guarantee) in respect of the Trust has occurred and is continuing and (iii)
CMS Energy has elected, and has not revoked such election, to pay Additional
Sums (as defined in the Guarantee) in respect of the Trust Preferred Securities
and Common Securities, CMS Energy will pay to the Trust such Additional Sums.
CMS Energy will also covenant that it will not, and it will not cause any of its
subsidiaries to (i) declare or pay any dividends or distributions on, or redeem,
purchase, acquire, or make a liquidation payment with respect to, any of CMS
Energy's capital stock or (ii) make any payment of principal, interest or
premium, if any, on or repay or repurchase or redeem any debt securities
(including guarantees of indebtedness for money borrowed) of CMS Energy that
rank pari passu to the Debt Securities (other than (a) any dividend, redemption,
liquidation, interest, principal or guarantee payment by CMS Energy where the
payment is made by way of securities (including capital stock) that rank pari
passu with or junior to the securities on which such dividend, redemption,
interest, principal or guarantee payment is being made, (b) payments under the
Guarantees, (c) purchases of CMS Energy Common Stock related to the issuance of
CMS Energy Common Stock under any of CMS Energy's benefit plans for its
directors, officers or employees, (d) as a result of a reclassification of CMS
Energy's capital stock or the exchange or conversion of one series or class of
CMS Energy's capital stock for another series or class of CMS Energy's capital
stock and (e) the purchase of fractional interests in shares of CMS Energy's
capital stock pursuant to the conversion or exchange provisions of such capital
stock or the security being converted or exchanged) if at such time (i) there
shall have occurred any event of which CMS Energy has actual knowledge that (a)
with the giving of notice or the lapse of time, or both, would constitute a
event of default and (b) in respect of which CMS Energy shall not have taken
reasonable steps to cure, (ii) CMS Energy shall be in default with respect to
its payment of any obligations under the Guarantee or (iii) CMS Energy shall
have given notice of its selection of an Extension Period as provided in the
indenture with respect to the Debt Securities and shall not have rescinded such
notice, or such Extension Period, or any extension thereof, shall be continuing.
CMS Energy also will covenant to (i) for so long as Trust Preferred Securities
are outstanding, not convert Debt Securities except pursuant to a notice of
conversion delivered to the Conversion Agent by a holder of Trust Preferred
Securities, (ii) maintain directly or indirectly 100% ownership of the Common
Securities, provided that certain successors which are permitted pursuant to the
indenture may succeed to CMS Energy's ownership of the Common Securities, (iii)
not voluntarily terminate, wind-up or liquidate the Trust, except (a) in
connection with a distribution of the Debt Securities to the holders of the
Trust Preferred Securities in liquidation of the Trust or (b) in connection with
certain mergers, consolidations or amalgamations permitted by the Trust
Agreement, (iv) maintain the reservation for issuance of the number of shares of
CMS Energy Common Stock that would be required from time to time upon the
conversion of all the Debt Securities then outstanding, (v) use its reasonable
efforts, consistent with the terms and provisions of the Trust Agreement, to
cause the Trust to remain classified as a grantor trust and not as an
association taxable as a corporation for United States federal income tax
purposes and (vi) deliver shares of CMS Energy Common Stock upon an election by
the holders of the Trust Preferred Securities to convert such Trust Preferred
Securities into CMS Energy Common Stock.
As part of the Guarantees, CMS Energy will agree that it will honor all
obligations described therein relating to the conversion or exchange of the
Trust Preferred Securities into or for CMS Energy Common Stock, or Debt
Securities.
AMENDMENTS AND ASSIGNMENT
Except with respect to any changes which do not materially adversely affect
the rights of holders of the Trust Preferred Securities (in which case no vote
will be required), the Guarantees may not be amended without the prior approval
of the holders of not less than a majority in aggregate liquidation amount of
such outstanding Trust Preferred Securities. All guarantees and agreements
contained in the Guarantees shall bind the successors, assigns, receivers,
trustees and representatives of CMS Energy and shall inure to the benefit of the
holders of the Trust Preferred Securities then outstanding.
TERMINATION OF THE GUARANTEES
The Guarantees will terminate and be of no further force and effect upon
full payment of the redemption price of the Trust Preferred Securities, upon
full payment of the amounts payable upon liquidation of the Trust, upon the
distribution, if any, of CMS Energy Common Stock to the holders of Trust
Preferred Securities in respect of the conversion of all such holders' Trust
Preferred Securities into CMS Energy Common Stock or upon distribution of the
Debt Securities to the holders of the Trust Preferred Securities in exchange for
all of the Trust Preferred Securities. The Guarantees will continue to be
effective or will be reinstated, as the case may be, if at any time any holder
of Trust Preferred Securities must restore payment of any sums paid under such
Trust Preferred Securities or the Guarantees.
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EVENTS OF DEFAULT
An event of default under a Guarantee will occur upon the failure of CMS
Energy to perform any of its payment or other obligations thereunder. The
holders of a majority in aggregate liquidation amount of the Trust Preferred
Securities have the right to direct the time, method and place of conducting any
proceeding for any remedy available to a Guarantee Trustee in respect of a
Guarantee or to direct the exercise of any trust or power conferred upon a
Guarantee Trustee under the Guarantees.
If a Guarantee Trustee fails to enforce a Guarantee, any holder of the Trust
Preferred Securities may institute a legal proceeding directly against CMS
Energy to enforce its rights under such Guarantee without first instituting a
legal proceeding against the Trust, the Guarantee Trustee or any other person or
entity. In addition, any record holder of Trust Preferred Securities shall have
the right, which is absolute and unconditional, to proceed directly against CMS
Energy to obtain Guarantee Payments, without first waiting to determine if the
Guarantee Trustee has enforced a Guarantee or instituting a legal proceeding
against the Trust, the Guarantee Trustee or any other person or entity. CMS
Energy has waived any right or remedy to require that any action be brought just
against the Trust, or any other person or entity before proceeding directly
against CMS Energy.
CMS Energy, as guarantor, is required to file annually with each Guarantee
Trustee a certificate as to whether or not CMS Energy is in compliance with all
the conditions and covenants applicable to it under the Guarantees.
STATUS OF THE GUARANTEES
The Guarantees will constitute unsecured obligations of CMS Energy and will
rank equal to or subordinate and junior in right of payment to all other
liabilities of CMS Energy, as applicable. The Guarantees will rank pari passu
with or senior to, as applicable, any guarantee now or hereafter entered into by
CMS Energy in respect of any preferred or preference stock of any affiliate of
CMS Energy.
The Guarantees will constitute a guarantee of payment and not of collection
which means that the guaranteed party may institute a legal proceeding directly
against the Guarantor to enforce its rights under the Guarantee without first
instituting a legal proceeding against any other person or entity. The
Guarantees will be held for the benefit of the holders of the Trust Preferred
Securities. The Guarantees will not be discharged except by payment of the
Guarantee Payments in full to the extent not paid by the Trust or upon
distribution of the Debt Securities to the holders of the Trust Preferred
Securities. The Guarantees do not place a limitation on the amount of additional
indebtedness that may be incurred by CMS Energy or any of its subsidiaries.
DESCRIPTION OF STOCK PURCHASE CONTRACTS AND STOCK PURCHASE UNITS
CMS Energy may issue Stock Purchase Contracts, representing contracts
obligating holders to purchase from CMS Energy, and CMS Energy to sell to the
holders, a specified number of shares of CMS Energy Common Stock at a future
date or dates. The price per share of CMS Energy Common Stock may be fixed at
the time the Stock Purchase Contracts are issued or may be determined by
reference to a specific formula set forth in the Stock Purchase Contracts. The
Stock Purchase Contracts may be issued separately or as part of Stock Purchase
Units consisting of a Stock Purchase Contract, Debt Securities, Trust Preferred
Securities or debt obligations of third parties, including U.S. Treasury
securities, securing the holders' obligations to purchase the Common Stock under
the Stock Purchase Contracts. The Stock Purchase Contracts may require CMS
Energy to make periodic payments to the holders of the Stock Purchase Units or
visa versa, and such payments may be unsecured or refunded on some basis. The
Stock Purchase Contracts may require holders to secure their obligations
thereunder in a specified manner.
The applicable prospectus supplement will describe the terms of any Stock
Purchase Contracts or Stock Purchase Units. The description in the prospectus
supplement will not purport to be complete and will be qualified in its entirety
by reference to the Stock Purchase Contracts, and, if applicable, collateral
arrangements and depositary arrangements, relating to such Stock Purchase
Contracts or Stock Purchase Units.
LEGAL OPINIONS
Opinions as to the legality of certain of the Offered Securities will be
rendered for CMS Energy by Michael D. Van Hemert, Esq., Assistant General
Counsel for CMS Energy. Certain matters of Delaware law relating to the validity
of the Trust Preferred Securities will be passed upon on behalf of the Trusts by
Skadden, Arps, Slate, Meagher & Flom LLP, special Delaware counsel to the
Trusts. Certain United States Federal income taxation matters may be passed upon
for CMS Energy and the Trust by either Jay M. Silverman, tax counsel for CMS
Energy, or by special tax counsel to CMS Energy and of the Trust, who will be
named in the prospectus
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<PAGE> 25
supplement. Certain legal matters with respect to Offered Securities will be
passed upon by counsel for any underwriters, dealers or agents, each of whom
will be named in the related prospectus supplement.
EXPERTS
The consolidated financial statements and schedules of CMS Energy as of
December 31, 1999 and 1998, and for each of the three years in the period ended
December 31, 1999 incorporated by reference in this prospectus, have been
audited by Arthur Andersen LLP, 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 periods ended March 31, June 30, and September 30, 2000 and 1999, 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 reports on the unaudited interim consolidated
financial information. This limitation of Section 11 responsibility is because
those reports are not a "report" or "part" of the registration statement
prepared or certified by the accountants within the meaning of Section 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.
PLAN OF DISTRIBUTION
CMS Energy and/or the Trusts may sell the Offered Securities: (i) through
the solicitation of proposals of underwriters or dealers to purchase the Offered
Securities; (ii) through underwriters or dealers on a negotiated basis; (iii)
directly to a limited number of purchasers or to a single purchaser; or (iv)
through agents. The prospectus supplement with respect to any Offered Securities
will set forth the terms of such offering, including the name or names of any
underwriters, dealers or agents; the purchase price of the Offered Securities
and the proceeds to CMS Energy and/or the Trust from such sale; any underwriting
discounts and commissions and other items constituting underwriters'
compensation; any initial public offering price and any discounts or concessions
allowed or reallowed or paid to dealers and any securities exchange on which
such Offered Securities may be listed. Any initial public offering price,
discounts or concessions allowed or reallowed or paid to dealers may be changed
from time to time.
If underwriters are used in the sale, the Offered Securities will be
acquired by the underwriters for their own account and may be resold from time
to time in one or more transactions, including negotiated transactions, at a
fixed public offering price or at varying prices determined at the time of sale.
The Offered Securities may be offered to the public either through underwriting
syndicates represented by one or more managing underwriters or directly by one
or more firms acting as underwriters. The underwriter or underwriters with
respect to a particular underwritten offering of Offered Securities will be
named in the prospectus supplement relating to such offering and, if an
underwriting syndicate is used, the managing underwriter or underwriters will be
set forth on the cover of such prospectus supplement. Unless otherwise set forth
in the prospectus supplement relating thereto, the obligations of the
underwriters to purchase the Offered Securities will be subject to certain
conditions precedent, and the underwriters will be obligated to purchase all the
Offered Securities if any are purchased.
If dealers are used in the sale of Offered Securities, CMS Energy and/or the
Trusts will sell such Offered Securities to the dealers as principals. The
dealers may then resell such Offered Securities to the public at varying prices
to be determined by such dealers at the time of resale. The names of the dealers
and the terms of the transaction will be set forth in the prospectus supplement
relating thereto.
The Offered Securities may be sold directly by CMS Energy and/or the Trusts
or through agents designated by CMS Energy and/or the Trusts from time to time.
Any agent involved in the offer or sale of the Offered Securities in respect to
which this prospectus is delivered will be named, and any commissions payable by
CMS Energy and/or the Trusts to such agent will be set forth, in the prospectus
supplement relating thereto. Unless otherwise indicated in the prospectus
supplement, any such agent will be acting on a best efforts basis for the period
of its appointment.
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<PAGE> 26
The Offered Securities may be sold directly by CMS Energy and/or the Trust
to institutional investors or others, who may be deemed to be underwriters
within the meaning of the Securities Act with respect to any resale thereof. The
terms of any such sales will be described in the prospectus supplement relating
thereto.
The CMS Energy Common Stock may be offered other than through the facilities
of a national securities exchange and other than to or through a market maker
other than on an exchange.
The Offered Securities may include various component securities of CMS
Energy Trust I's 7 3/4% Convertible Quarterly Income Preferred Securities; CMS
Energy Trust II's 8.750% Adjustable Convertible Trust Securities; and CMS Energy
Trust III's 7 1/4% Premium Equity Participating Security Units.
Agents, dealers and underwriters may be entitled under agreements with CMS
Energy and/or the Trust to indemnification by CMS Energy and/or the Trust
against certain civil liabilities, including liabilities under the Securities
Act, or to contribution with respect to payments which such agents, dealers or
underwriters may be required to make in respect thereof. Agents, dealers and
underwriters may be customers of, engage in transactions with, or perform
services for CMS Energy and/or the Trust in the ordinary course of business.
The Offered Securities may also be offered and sold, if so indicated in the
applicable prospectus supplement, in connection with a remarketing upon their
purchase, in accordance with a redemption or repayment pursuant to their terms,
or otherwise, by one or more firms ("remarketing firms"), acting as principals
for their own accounts or as agents for CMS Energy and/or the Trusts. Any
remarketing firm will be identified and the terms of its agreement, if any, with
its compensation will be described in the applicable prospectus supplement.
Remarketing firms may be deemed to be underwriters, as such term is defined in
the Securities Act, in connection with the Offered Securities remarketed
thereby. Remarketing firms may be entitled under agreements which may be entered
into with CMS Energy and/or the Trusts to indemnification or contribution by CMS
Energy and/or the Trusts against certain civil liabilities, including
liabilities under the Securities Act, and may be customers of, engage in
transactions or perform services for CMS Energy and its subsidiaries in the
ordinary course of business.
The Offered Securities may or may not be listed on a national securities
exchange. Reference is made to the prospectus supplement with regard to such
matter. No assurance can be given that there will be a market for any of the
Offered Securities.
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<PAGE> 27
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses to be incurred by CMS
Energy in connection with the issuance of and distribution of the securities
being registered.
<TABLE>
<CAPTION>
AMOUNT
------
<S> <C>
Filing fee--Securities and Exchange Commission ................. $123,640
*Listing on New York Stock Exchange ............................ 75,000
*Trustees expenses ............................................. 25,000
*Printing and Engraving ........................................ 100,000
*Services of counsel ........................................... 30,000
*Services of independent public accountants, Arthur
Andersen LLP .................................................. 25,000
*Rating Agency Fees, Collateral Agent's and Purchase ........... $123,640
Contract Agent's Fees ..........................................
*Blue Sky fees and expenses .................................... 20,000
*Miscellaneous ................................................. 18,000
--------
Total ..................................................... $566,640
========
</TABLE>
----------
*Estimated
ITEM 15. 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 the Corporation, or is or was serving at the
request of the Corporation as 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.
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<PAGE> 28
Article VIII of CMS Energy's Articles of Incorporation provides:
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 (I) of the
Michigan Business Corporation Act, and (iv) any action 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 of CMS Energy's Articles of Incorporation provides:
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 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.
Sections 561 through 571 of the Michigan Business Corporation Act provides CMS
Energy with the power to indemnify directors, officers, employees and agents
against certain expenses and payments, and to purchase and maintain insurance on
behalf of directors, officers, employees and agents.
Officers and directors and Administrative Trustees of the Trust are covered
within specified monetary limits by insurance against certain losses arising
from claims made by reason of their being directors or officers of CMS Energy or
of CMS Energy's subsidiaries and CMS Energy's officers and directors are
indemnified against such losses by reason of their being or having been
directors of officers or another corporation, partnership, joint venture, trust
or other enterprise at CMS Energy's request. In addition, CMS Energy 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.
The Trust Agreement of the Trust provides that to the fullest extent permitted
by applicable law, the Trust shall indemnify and hold harmless each of the
Trustees, any Affiliate of the Trustees, any officer, director, shareholder,
employee, representative or agent of any Trustee and any employee or agent of
the Trust or its Affiliates (each a "Indemnified Person"), from and against any
loss, damage, liability, tax, penalty, expense or claim of any kind or nature
whatsoever incurred by such Indemnified Person by reason the creation, operation
or termination of the Trust or any act or omission performed or omitted by such
Indemnified Person in good faith on behalf of the Trust and in a manner such
Indemnified Person reasonably believed to be within the scope of authority
conferred on such Indemnified Person by the Trust Agreement, except that no
Indemnified Person shall be entitled to be indemnified in respect of any loss,
damage or claim incurred by such Indemnified Person by reason of negligence or
willful misconduct with respect to such acts or omissions.
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<PAGE> 29
ITEM 16. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<S> <C>
*(1)(a) -- Form of Underwriting Agreement with respect to the
Offered Securities (other than the Trust Preferred
Securities). (Designated in CMS Energy's Form S-3
Registration Statement Filed December 15, 2000, File No.
333-51932 as Exhibit (1)(a).)
*(1)(b) -- Form of Underwriting Agreement with respect Trust
Preferred Securities). (Designated in CMS Energy's Form
S-3 Registration Statement Filed December 15, 2000, File
No. 333-51932 as Exhibit (1)(b).)
*(3)(a) -- Restated Articles of Incorporation of CMS Energy.
(Designated in CMS Energy's Form S-3 Registration
Statement, filed December 15, 2000 File No. 333-51932 as
Exhibit 3(a).)
*(3)(b) -- By-Laws of CMS Energy. (Designated in CMS Energy's Form
S-3 Registration Statement, filed September 11, 2000,
File No. 333-45556, as Exhibit 3(b).)
*(4)(a) -- Indenture dated as of September 15, 1992 between CMS
Energy Corporation and NBD Bank, as Trustee. (Designated
in CMS Energy's Form S-3 Registration Statement filed May
1, 1992, File No. 33-47629, as Exhibit (4)(a).)
First Supplemental Indenture dated as of October 1, 1992
between CMS Energy Corporation and NBD Bank, as Trustee.
(Designated in CMS Energy's Form 8-K dated October 1,
1992, File No. 1-9513, as Exhibit (4).)
Second Supplemental Indenture dated as of October 1, 1992
between CMS Energy Corporation and NBD Bank, as Trustee.
(Designated in CMS Energy's Form 8-K dated October 1,
1992, File No. 1-9513, as Exhibit 4(a).)
Third Supplemental Indenture dated as of May 6, 1997
between CMS Energy Corporation and NBD Bank, as Trustee.
(Designated in CMS Energy's Form 10-Q for the quarter
ended March 31, 1997, File No. 1-9513, as Exhibit (4).)
Fourth Supplemental Indenture dated as of September 26,
1997 between CMS Energy Corporation and NBD Bank, as
Trustee. (Designated in CMS Energy's Form S-3
Registration Statement filed October 6, 1997, File No.
333-37241, as Exhibit (4)(a).)
Fifth Supplemental Indenture dated as of November 4, 1997
between CMS Energy Corporation and NBD Bank, as Trustee.
(Designated in CMS Energy's Form 10-Q for the quarter
ended September 30, 1997, File No. 1-9513, as Exhibit
(4)(b).)
Sixth Supplemental Indenture dated as of January 13, 1998
between CMS Energy Corporation and NBD Bank, as Trustee
(Designated in CMS Energy's Form 10-K for
</TABLE>
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<PAGE> 30
<TABLE>
<S> <C>
the year ended December 31, 1997, File No. 1-9513, as
Exhibit (4)(a)).)
Seventh Supplemental Indenture dated January 25, 1999
between CMS Energy Corporation and NBD Bank, as Trustee
(Designated in CMS Energy's Form 10-K for the year ended
December 31,1998, File No.1-9513, as Exhibit 4(d)(i).)
Eighth Supplemental Indenture dated February 3, 1999
between CMS Energy Corporation and NBD, as Trustee
(Designated in CMS Energy's Form 10-K for the year ended
December 31, 1998, File No.1-9513, Exhibit 4(d)(ii).)
Ninth Supplemental Indenture dated as of June 22, 1999
between CMS Energy Corporation and NBD, as Trustee
(Designated in CMS Energy's Form 10-Q for the quarter
ended June 30, 1999, File No.1-9513, Exhibit 4(a).)
Tenth Supplemental Indenture dated as of October 12, 2000
between CMS Energy Corporation and Bank One Trust
Company, National Association as Trustee (Designated in
CMS Energy's Form S-3MEF, filed October 19, 2000, File
No. 333-48276, as Exhibit (4).)
*(4)(b) -- Indenture dated as of January 15, 1994 Between CMS
Energy and The Chase Manhattan Bank, as Trustee.
(Designated in CMS Energy's Form 8-K dated March 29,
1994, File No. 1-9513, as Exhibit (4)(a).)
First Supplemental Indenture dated as of January 20, 1994
between CMS Energy and the Chase Manhattan Bank, as
Trustee. (Designated in CMS Energy's Form 8-K dated March
29, 1994, File No. 1-9513, as Exhibit (4)(b).)
Second Supplemental Indenture dated as of March 19, 1996
between CMS Energy Corporation and The Chase Manhattan
Bank, as Trustee. (Designated in CMS Energy's Form 10-Q
for the quarter ended March 31, 1996, File No. 1-9513, as
Exhibit (4).)
Third Supplemental Indenture dated as of March 17, 1997
between CMS Energy Corporation and The Chase Manhattan
Bank, as Trustee. (Designated in CMS Energy's Form 8-K
dated May 1, 1997, File No. 1-9513, as Exhibit (4).)
Fourth Supplemental Indenture dated as of September 17,
1997 between CMS Energy Corporation and The Chase
Manhattan Bank, as Trustee. (Designated in CMS Energy's
Form S-3 Registration Statement filed September 22, 1997,
File No. 333-36115, as Exhibit (4)(d).)
Fifth Supplemental Indenture dated as of August 26, 1998
between CMS Energy Corporation and The Chase Manhattan
Bank, as Trustee. (Designated in CMS Energy's Form S-4
Registration Statement filed September 10, 1998, File No.
333-63229, as Exhibit (4)(c).)
</TABLE>
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<PAGE> 31
<TABLE>
<S> <C>
Sixth Supplemental Indenture dated as of November 9, 2000
between CMS Energy Corporation and The Chase Manhattan
Bank, as Trustee. (Designated in CMS Energy's Form 10-Q
for the quarter ended September 30, 2000, File No.
1-9513, as Exhibit (4).)
*(4)(c) -- Credit Agreement dated as of June 27, 2000 among CMS
Energy, the Banks, the Administrative Agent, Collateral
Agent, the Co-Syndication Agent and Documentation Agent,
all as defined therein, and the Exhibits thereto.
(Designated in CMS Energy's Form 10-Q for the quarter
ended June 30, 2000, File No. 1-9513, as Exhibit 4).)
*(4)(d) -- Subordinated Debt Indenture between CMS Energy and
The Bank of New York, as Trustee. (Designated in CMS
Energy's Form 8-K dated June 1, 1997, File No. 1-9513, as
Exhibit (4)(a).)
First Supplemental Indenture between CMS Energy and the
Bank of New York, as Trustee. (Designated in CMS Energy's
Form 8-K dated July 1, 1997, File No. 1-9513, as Exhibit
(4)(b).)
Second Supplement Indenture between CMS Energy And the
Bank of New York, as Trustee. (Designated In CMS Energy's
Form 10-Q for the quarter ended June 30, 1999, File No.
1-9513, as Exhibit (4)(b).)
*(4)(e) -- Form of Supplemental Indenture to be used With the
Subordinated Debentures issued in connection with the
Trust Preferred Securities. (Designated in CMS Energy's
Amendment No. 1 to Form S-3 Registration Statement filed
June 13, 1997, File No. 333-27849, as Exhibit (4)(f).)
*(4)(f) -- Certificate of Trust of CMS Energy Trust I.
(Designated in CMS Energy's Form S-3 Registration
Statement, filed May 27, 1997, File No. 333-27849, as
Exhibit (4)(g).)
*(4)(g) -- Form of Amended and Restated Trust Agreement of CMS
Energy Trust I. (Designated in CMS Energy's Form S-3
Registration Statement, filed May 27, 1997, File No.
333-27849, as Exhibit (4)(i).)
*(4)(h) -- Certificate of Trust of CMS Energy Trust II.
(Designated in CMS Energy's Amendment No. 1 to Form S-3
Registration Statement filed June 13, 1997, File No.
333-27849, as Exhibit (4)(h).)
*(4)(i) -- Form of Amended and Restated Trust Agreement of CMS
Energy Trust II. (Designated in CMS Energy's Amendment
No. 1 to Form S-3 Registration Statement filed June 13,
1997, File No. 333-27849, as Exhibit (4)(f).)
*(4)(j) -- Certificate of Trust of CMS Energy Trust III.
(Designated in CMS Energy's Form S-3A Registration
Statement, filed December 15, 1998, File No. 333-68937,
as Exhibit (4)(i).)
*(4)(k) -- Form of Amended and Restated Trust Agreement of CMS
Energy Trust III (Designated in CMS Energy's Form S-3A
Registration Statement, filed December 15, 1998, File No.
333-68937, as Exhibit (4)(j).)
</TABLE>
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<PAGE> 32
<TABLE>
<S> <C>
*(4)(l) -- Form of Subordinated Debenture (included in (4)(d).)
*(4)(m) -- Form of Trust Preferred Security (included in (4)(g).)
*(4)(n) -- Form of Trust Preferred Securities Guarantee
Agreement of CMS Energy Trust I, II and III. (Designated
in CMS Energy's Form S-3 Registration Statement, filed
December 15, 2000, File No. 333-51932 , as Exhibit
(4)(l).)
*(4)(o) -- Form of Purchase Contract Agreement between CMS
Energy and the Purchase Contract Agent (including as
Exhibit A the form of the Security Certificate)
(Designated in CMS Energy's Form S-3A Registration
Statement, filed June 13, 1997, File No. 333-27849, as
Exhibit 4(o).)
(5)(a) -- Opinion of Michael D. Van Hemert, Assistant General
Counsel for CMS Energy.
*(5)(b) -- Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
regarding the legality of the Trust Preferred Securities.
(Designated in CMS Energy's Form S-3A Registration
Statement filed December 15, 1998, File No. 333-68937, as
Exhibit 5(b) and CMS Energy's Form S-3 Registration
Statement, filed May 27, 1997, File No. 333-27849, as
Exhibit 5(b)).
*(12) -- Statement re computation of ratios of earnings to
Fixed charges and ratios of earnings to Fixed charges and
preferred stock dividends. (Designated in CMS Energy's
Form S-3 Registration Statement, filed December 15, 2000,
File No. 333-51932, as Exhibit 12.)
(15) -- Letter regarding unaudited interim financial
information
(23)(a) -- Consent of Michael D. Van Hemert, Assistant General
for CMS Energy (included in Exhibit (5)(a) above).
*(23)(b) -- Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in Exhibit (5)(b) above).
(23)(c) -- Consent of Arthur Andersen LLP.
(24) -- Powers of Attorney.
*(25)(a) -- Statement of Eligibility and Qualification of The
Bank of New York (Trustee under the Subordinated Debt
Indenture). (Designated in CMS Energy's Form S-3A
Registration Statement filed December 15, 1998, File No.
333-68937, as Exhibit 25(a).)
*(25)(b) -- Statement of Eligibility of Property Trustee of CMS
Energy Trust I. (Designated in CMS Energy's Form S-3
Registration Statement, filed May 27, 1997, File No.
333-27849, as Exhibit 25(b).)
*(25)(c) -- Statement of Trust Preferred Security Guarantee
Trustee of CMS Energy Trust I. (Designated in CMS
Energy's Form S-3 Registration Statement, filed May 27,
1997, File No. 333-27849, as Exhibit 25(d).)
</TABLE>
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<PAGE> 33
<TABLE>
<S> <C>
*(25)(d) -- Statement of Eligibility of Property Trustee of CMS
Energy Trust II. (Designated in CMS Energy's Form S-3A
Registration Statement, filed December 15, 1998, File No.
333-68937, as Exhibit 25(b).)
*(25)(e) -- Statement of Eligibility of the Trust Preferred
Security Guarantee Trustee of CMS Energy Trust II.
(Designated in CMS Energy's Form S-3A Registration
Statement filed December 15, 1998, File No. 333-68937, as
Exhibit 25(c).)
*(25)(f) -- Statement of Eligibility of Property Trustee of CMS
Energy Trust III. (Designated in CMS Energy's Form S-3A
Registration Statement filed December 15, 1998, File No.
333-68937, as Exhibit 25(d).)
*(25)(g) -- Statement of Eligibility of the Trust Preferred
Security Guarantee Trustee of CMS Energy Trust III.
(Designated in CMS Energy's Form S-3A Registration
Statement filed December 15, 1998, File No. 333-68937, as
Exhibit 25(e).)
</TABLE>
----------
*Previously filed
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.
ITEM 17. UNDERTAKINGS.
The undersigned registrants hereby undertake:
(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. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table in the
effective 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 with or furnished to the Commission 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.
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<PAGE> 34
(4) 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.
(5) 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 15 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 as 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
be governed by the final adjudication of such issue.
(6) That (1) for purposes of determining any liability under the
Securities Act of 1933, the information omitted from the form of prospectus
filed as part of this Registration Statement in reliance upon Rule 430A and
contained in a form of prospectus filed by the registrant pursuant to Rule
424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be
part of this Registration Statement as of the time it was declared
effective; and (2) for the purpose of determining any liability under the
Securities Act of 1933, each post-effective amendment that contains a form
of prospectus 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.
-31-
<PAGE> 35
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 21st day of
December, 2000.
CMS ENERGY CORPORATION
By: /s/ Alan M. Wright
----------------------------
Alan M. Wright
Executive Vice President and
Chief Financial Officer and
Chief Administrative Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities and on the 21st day of December, 2000.
<TABLE>
<CAPTION>
NAME TITLE
---- -----
<S> <C> <C>
(i) Principal executive officer
/s/William T. McCormick, Jr. Chairman of the Board, Chief
------------------------------------------------ Executive Officer and Director
William T. McCormick, Jr.
(ii) Principal financial officer:
/s/Alan M. Wright Executive Vice President and
------------------------------------------------ Chief Financial and Chief Administrative Officer
Alan M. Wright
(iii) Controller or principal accounting officer
/s/Preston D. Hopper Senior Vice President, Controller and
------------------------------------------------- Chief Accounting Officer
Preston D. Hopper
* Director
-------------------------------------------------
(John M. Deutch)
* Director
-------------------------------------------------
(James J. Duderstadt)
* Director
-------------------------------------------------
(Kathleen R. Flaherty)
* Director
-------------------------------------------------
(Victor J. Fryling)
* Director
-------------------------------------------------
(Earl D. Holton)
</TABLE>
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<PAGE> 36
<TABLE>
<S> <C>
Director
------------------------------------------------
(William U. Parfet)
* Director
------------------------------------------------
(Percy A. Pierre)
* Director
------------------------------------------------
(Kenneth L. Way)
* Director
------------------------------------------------
(Kenneth Whipple)
* Director
------------------------------------------------
(John B. Yasinsky)
*By: /s/ Alan M. Wright
------------------------------------------------
Alan M. Wright
Attorney in-fact
</TABLE>
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<PAGE> 37
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, CMS Energy Trust
I certifies that it has reasonable grounds to believe that it meets all 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, State of Michigan, on the 21st day of
December, 2000.
CMS ENERGY TRUST I
By: /s/ Alan M. Wright
------------------
Alan M. Wright, Trustee
By: /s/ Thomas A. McNish
--------------------
Thomas A. Mc Nish, Trustee
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<PAGE> 38
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, CMS Energy Trust
II certifies that it has reasonable grounds to believe that it meets all 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, State of Michigan, on the 21st day of
December, 2000.
CMS ENERGY TRUST II
By: /s/ Alan M. Wright
------------------
Alan M. Wright, Trustee
By: /s/ Thomas A. McNish
--------------------
Thomas A. Mc Nish, Trustee
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<PAGE> 39
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, CMS Energy Trust
III certifies that it has reasonable grounds to believe that it meets all 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, State of Michigan, on the 21st day of
December, 2000.
CMS ENERGY TRUST III
By: /s/ Alan M. Wright
------------------
Alan M. Wright, Trustee
By: /s/ Thomas A. McNish
--------------------
Thomas A. Mc Nish, Trustee
-36-
<PAGE> 40
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
----------- -----------
<S> <C>
*(1)(a) -- Form of Underwriting Agreement with respect to the
Offered Securities (other than the Trust Preferred
Securities). (Designated in CMS Energy's Form S-3
Registration Statement Filed December 15, 2000, File No.
333-51932 as Exhibit (1)(a).)
*(1)(b) -- Form of Underwriting Agreement with respect Trust
Preferred Securities). (Designated in CMS Energy's Form
S-3 Registration Statement Filed December 15, 2000, File
No. 333-51932 as Exhibit (1)(b).)
*(3)(a) -- Restated Articles of Incorporation of CMS Energy.
(Designated in CMS Energy's Form S-3 Registration
Statement, filed December 15, 2000 File No. 333-51932 as
Exhibit 3(a).)
*(3)(b) -- By-Laws of CMS Energy. (Designated in CMS Energy's Form
S-3 Registration Statement, filed September 11, 2000,
File No. 333-45556, as Exhibit 3(b).)
*(4)(a) -- Indenture dated as of September 15, 1992 between CMS
Energy Corporation and NBD Bank, as Trustee. (Designated
in CMS Energy's Form S-3 Registration Statement filed May
1, 1992, File No. 33-47629, as Exhibit (4)(a).)
First Supplemental Indenture dated as of October 1, 1992
between CMS Energy Corporation and NBD Bank, as Trustee.
(Designated in CMS Energy's Form 8-K dated October 1,
1992, File No. 1-9513, as Exhibit (4).)
Second Supplemental Indenture dated as of October 1, 1992
between CMS Energy Corporation and NBD Bank, as Trustee.
(Designated in CMS Energy's Form 8-K dated October 1,
1992, File No. 1-9513, as Exhibit 4(a).)
Third Supplemental Indenture dated as of May 6, 1997
between CMS Energy Corporation and NBD Bank, as Trustee.
(Designated in CMS Energy's Form 10-Q for the quarter
ended March 31, 1997, File No. 1-9513, as Exhibit (4).)
Fourth Supplemental Indenture dated as of September 26,
1997 between CMS Energy Corporation and NBD Bank, as
Trustee. (Designated in CMS Energy's Form S-3
Registration Statement filed October 6, 1997, File No.
333-37241, as Exhibit (4)(a).)
Fifth Supplemental Indenture dated as of November 4, 1997
between CMS Energy Corporation and NBD Bank, as Trustee.
(Designated in CMS Energy's Form 10-Q for the quarter
ended September 30, 1997, File No. 1-9513, as Exhibit
(4)(b).)
</TABLE>
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<PAGE> 41
<TABLE>
<S> <C>
Sixth Supplemental Indenture dated as of January 13, 1998
between CMS Energy Corporation and NBD Bank, as Trustee
(Designated in CMS Energy's Form 10-K for the year ended
December 31, 1997, File No. 1-9513, as Exhibit (4)(a)).)
Seventh Supplemental Indenture dated January 25, 1999
between CMS Energy Corporation and NBD Bank, as Trustee
(Designated in CMS Energy's Form 10-K for the year ended
December 31, 1998, File No.1-9513, as Exhibit 4(d)(i).)
Eighth Supplemental Indenture dated February 3, 1999
between CMS Energy Corporation and NBD, as Trustee
(Designated in CMS Energy's Form 10-K for the year ended
December 31, 1998, File No.1-9513, Exhibit 4(d)(ii).)
Ninth Supplemental Indenture dated as of June 22, 1999
between CMS Energy Corporation and NBD, as Trustee
(Designated in CMS Energy's Form 10-Q for the quarter
ended June 30, 1999, File No.1-9513, Exhibit 4(a).)
Tenth Supplemental Indenture dated as of October 12, 2000
between CMS Energy Corporation and Bank One Trust
Company, National Association as Trustee (Designated in
CMS Energy's Form S-3MEF, filed October 19, 2000, File
No. 333-48276, as Exhibit (4).)
*(4)(b) -- Indenture dated as of January 15, 1994 Between CMS Energy
and The Chase Manhattan Bank, as Trustee. (Designated in
CMS Energy's Form 8-K dated March 29, 1994, File No.
1-9513, as Exhibit (4)(a).)
First Supplemental Indenture dated as of January 20, 1994
between CMS Energy and the Chase Manhattan Bank, as
Trustee. (Designated in CMS Energy's Form 8-K dated March
29, 1994, File No. 1-9513, as Exhibit (4)(b).)
Second Supplemental Indenture dated as of March 19, 1996
between CMS Energy Corporation and The Chase Manhattan
Bank, as Trustee. (Designated in CMS Energy's Form 10-Q
for the quarter ended March 31, 1996, File No. 1-9513, as
Exhibit (4).)
Third Supplemental Indenture dated as of March 17, 1997
between CMS Energy Corporation and The Chase Manhattan
Bank, as Trustee. (Designated in CMS Energy's Form 8-K
dated May 1, 1997, File No. 1-9513, as Exhibit (4).)
Fourth Supplemental Indenture dated as of September 17,
1997 between CMS Energy Corporation and The Chase
Manhattan Bank, as Trustee. (Designated in CMS Energy's
Form S-3 Registration Statement filed September 22, 1997,
File No. 333-36115, as Exhibit (4)(d).)
</TABLE>
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<PAGE> 42
<TABLE>
<S> <C>
Fifth Supplemental Indenture dated as of August 26, 1998
between CMS Energy Corporation and The Chase Manhattan
Bank, as Trustee. (Designated in CMS Energy's Form S-4
Registration Statement filed September 10, 1998, File No.
333-63229, as Exhibit (4)(c).)
Sixth Supplemental Indenture dated as of November 9, 2000
between CMS Energy Corporation and The Chase Manhattan
Bank, as Trustee. (Designated in CMS Energy's Form 10-Q
for the quarter ended September 30, 2000, File No.
1-9513, as Exhibit (4).)
*(4)(c) -- Credit Agreement dated as of June 27, 2000 among CMS
Energy, the Banks, the Administrative Agent, Collateral
Agent, the Co-Syndication Agent and Documentation Agent,
all as defined therein, and the Exhibits thereto.
(Designated in CMS Energy's Form 10-Q for the quarter
ended June 30, 2000, File No. 1-9513, as Exhibit 4).)
*(4)(d) -- Subordinated Debt Indenture between CMS Energy and The
Bank of New York, as Trustee. (Designated in CMS Energy's
Form 8-K dated June 1, 1997, File No. 1-9513, as Exhibit
(4)(a).)
First Supplemental Indenture between CMS Energy and the
Bank of New York, as Trustee. (Designated in CMS Energy's
Form 8-K dated July 1, 1997, File No. 1-9513, as Exhibit
(4)(b).)
Second Supplement Indenture between CMS Energy And the
Bank of New York, as Trustee. (Designated In CMS Energy's
Form 10-Q for the quarter ended June 30, 1999, File No.
1-9513, as Exhibit (4)(b).)
*(4)(e) -- Form of Supplemental Indenture to be used With the
Subordinated Debentures issued in connection with the
Trust Preferred Securities. (Designated in CMS Energy's
Amendment No. 1 to Form S-3 Registration Statement filed
June 13, 1997, File No. 333-27849, as Exhibit (4)(f).)
*(4)(f) -- Certificate of Trust of CMS Energy Trust I. (Designated
in CMS Energy's Form S-3 Registration Statement, filed
May 27, 1997, File No. 333-27849, as Exhibit (4)(g).)
*(4)(g) -- Form of Amended and Restated Trust Agreement of CMS
Energy Trust I. (Designated in CMS Energy's Form S-3
Registration Statement, filed May 27, 1997, File No.
333-27849, as Exhibit (4)(i).)
*(4)(h) -- Certificate of Trust of CMS Energy Trust II. (Designated
in CMS Energy's Amendment No. 1 to Form S-3 Registration
Statement filed June 13, 1997, File No. 333-27849, as
Exhibit (4)(h).)
*(4)(i) -- Form of Amended and Restated Trust Agreement of CMS
Energy Trust II. (Designated in CMS Energy's Amendment
No. 1 to Form S-3 Registration Statement filed June 13,
1997, File No. 333-27849, as Exhibit (4)(f).)
*(4)(j) -- Certificate of Trust of CMS Energy Trust III. (Designated
in CMS Energy's Form S-3A
</TABLE>
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<PAGE> 43
<TABLE>
<S> <C>
Registration Statement, filed December 15, 1998, File No.
333-68937, as Exhibit (4)(i).)
*(4)(k) -- Form of Amended and Restated Trust Agreement of CMS
Energy Trust III (Designated in CMS Energy's Form S-3A
Registration Statement, filed December 15, 1998, File No.
333-68937, as Exhibit (4)(j).)
*(4)(l) -- Form of Subordinated Debenture (included in (4)(d).)
*(4)(m) -- Form of Trust Preferred Security (included in (4)(g).)
*(4)(n) -- Form of Trust Preferred Securities Guarantee Agreement of
CMS Energy Trust I, II and III. (Designated in CMS
Energy's Form S-3 Registration Statement, filed December
15, 2000, File No. 333-51932, as Exhibit (4)(l).)
*(4)(o) -- Form of Purchase Contract Agreement between CMS Energy
and the Purchase Contract Agent (including as Exhibit A
the form of the Security Certificate) (Designated in CMS
Energy's Form S-3A Registration Statement, filed June 13,
1997, File No. 333-27849, as Exhibit 4(o).)
(5)(a) -- Opinion of Michael D. Van Hemert, Assistant General
Counsel for CMS Energy.
*(5)(b) -- Opinion of Skadden, Arps, Slate, Meagher & Flom LLP
regarding the legality of the Trust Preferred Securities.
(Designated in CMS Energy's Form S-3A Registration
Statement filed December 15, 1998, File No. 333-68937, as
Exhibit 5(b) and CMS Energy's Form S-3 Registration
Statement, filed May 27, 1997, File No. 333-27849, as
Exhibit 5(b)).
*(12) -- Statement re computation of ratios of earnings to Fixed
charges and ratios of earnings to Fixed charges and
preferred stock dividends. (Designated in CMS Energy's
Form S-3 Registration Statement, filed December 15, 2000,
File No. 333-51932, as Exhibit 12.)
(15) -- Letter regarding unaudited interim financial information
(23)(a) -- Consent of Michael D. Van Hemert, Assistant General for
CMS Energy (included in Exhibit (5)(a) above).
*(23)(b) -- Consent of Skadden, Arps, Slate, Meagher & Flom LLP
(included in Exhibit (5)(b) above).
(23)(c) -- Consent of Arthur Andersen LLP.
(24) -- Powers of Attorney.
*(25)(a) -- Statement of Eligibility and Qualification of The Bank of
New York (Trustee under the Subordinated Debt Indenture).
(Designated in CMS Energy's Form S-3A Registration
Statement filed December 15, 1998, File No. 333-68937, as
Exhibit 25(a).)
</TABLE>
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<PAGE> 44
<TABLE>
<S> <C>
*(25)(b) -- Statement of Eligibility of Property Trustee of CMS
Energy Trust I. (Designated in CMS Energy's Form S-3
Registration Statement, filed May 27, 1997, File No.
333-27849, as Exhibit 25(b).)
*(25)(c) -- Statement of Trust Preferred Security Guarantee Trustee
of CMS Energy Trust I. (Designated in CMS Energy's Form
S-3 Registration Statement, filed May 27, 1997, File No.
333-27849, as Exhibit 25(d).)
*(25)(d) -- Statement of Eligibility of Property Trustee of CMS
Energy Trust II. (Designated in CMS Energy's Form S-3A
Registration Statement, filed December 15, 1998, File No.
333-68937, as Exhibit 25(b).)
*(25)(e) -- Statement of Eligibility of the Trust Preferred Security
Guarantee Trustee of CMS Energy Trust II. (Designated in
CMS Energy's Form S-3A Registration Statement filed
December 15, 1998, File No. 333-68937, as Exhibit 25(c).)
*(25)(f) -- Statement of Eligibility of Property Trustee of CMS
Energy Trust III. (Designated in CMS Energy's Form S-3A
Registration Statement filed December 15, 1998, File No.
333-68937, as Exhibit 25(d).)
*(25)(g) -- Statement of Eligibility of the Trust Preferred Security
Guarantee Trustee of CMS Energy Trust III. (Designated in
CMS Energy's Form S-3A Registration Statement filed
December 15, 1998, File No. 333-68937, as Exhibit 25(e).)
</TABLE>
----------
*Previously filed
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.
-41-
