UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
SCHEDULE TO
Tender Offer Statement under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
---------------
CMS ENERGY CORPORATION
(Name of Subject Company (issuer))
CMS ENERGY CORPORATION
(Name of Filing Persons)
(Issuer)
4.50% CUMULATIVE CONVERTIBLE PREFERRED STOCK
(LIQUIDATION PREFERENCE $50.00 PER SHARE)
(Title of Class of Securities)
125896803
(CUSIP Number of Class of Securities)
ROBERT C. SHROSBREE
ASSISTANT GENERAL COUNSEL
CMS ENERGY CORPORATION
ONE ENERGY PLAZA
JACKSON, MICHIGAN 49201
(517) 768-7323
AND
THOMAS J. WEBB
EXECUTIVE VICE PRESIDENT
AND CHIEF FINANCIAL OFFICER
CMS ENERGY CORPORATION
ONE ENERGY PLAZA
JACKSON, MICHIGAN 49201
(517) 788-1030
(Name, address, and telephone numbers
of persons authorized to receive notices
on behalf of filing persons)
CALCULATION OF FILING FEE
-----------------------------
TRANSACTION VALUATION * AMOUNT OF FILING FEE **
------------------------- -------------------------
$250,000,000 $31,675.00
* For the purpose of calculating the filing fee only, this amount is based on
the exchange for all 5,000,000 issued and outstanding shares of 4.50% Cumulative
Convertible Preferred Stock (liquidation preference $50.00 per share) for
5,000,000 new shares of 4.50% Cumulative Convertible Preferred Stock
(liquidation preference $50.00 per share).
** The amount of the filing fee calculated in accordance with the Securities
Exchange Act of 1934, as amended equals $126.70 for each $1,000,000 of value.
[ ] Check the box if any part of the fee is offset as provided by Rule
0-11(a)(2) and identify the filing with which the offsetting fee was previously
paid. Identify the previous filing by registration statement number, or the Form
or Schedule and the date of its filing.
Amount Previously Paid:
-----------------------------
Form or Registration No.:
---------------------------
Filing Party:
---------------------------------------
Date Filed:
-----------------------------------------
[ ] Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which the
statement relates:
[ ]third-party tender offer subject to Rule 14d-1.
[X]issuer tender offer subject to Rule 13e-4.
[ ]going-private transaction subject to Rule 13e-3.
[ ]amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the
results of the tender offer: [ ]
All information in the Offering Memorandum dated November 9, 2004 attached
hereto as Exhibit 12(a)(1) (the "Offering Memorandum") is incorporated herein by
reference in answer to some or all of the items below.
ITEM 1. SUMMARY TERM SHEET.
The information set forth in the Offering Memorandum, most specifically
under the section captioned "Summary Term Sheet" is incorporated herein by
reference.
ITEM 2. SUBJECT COMPANY INFORMATION.
a) The information set forth in the Offering Memorandum, most
specifically under the section captioned "Where You Can Find More
Information."
b) The subject class of equity securities is the 4.50% Cumulative
Convertible Preferred Stock (liquidation preference $50.00 per
share) (the "Preferred Stock") of CMS Energy Corporation. As of the
date of this Schedule, there are 5,000,000 shares of Preferred Stock
outstanding.
c) The Preferred Stock is not listed on any national securities
exchange or authorized to be quoted in any inter-dealer quotation
system of any national securities association. Certain institutions
and securities dealers do provide quotations for and engage in
transactions in the Preferred Stock. However, there is no
established trading market for the Preferred Stock, other than
through these limited or sporadic quotations.
ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSON.
The principal executive offices of the filing person, CMS Energy
Corporation, are located at One Energy Plaza, Jackson, Michigan 49201, and its
telephone number is (517) 788-0550.
Pursuant to General Instruction C to Schedule TO promulgated by the United
States Securities and Exchange Commission, the following persons are the
directors and/or executive officers of CMS Energy Corporation:
Kenneth Whipple Chairman of the Board
David W. Joos President, Chief Executive Officer and Director
S. Kinnie Smith, Jr. Vice Chairman of the Board and General Counsel
Thomas J. Webb Executive Vice President and Chief Financial Officer
David G. Mengebier Senior Vice President, Governmental and Public Affairs/Community Services
John F. Drake Senior Vice President, Human Resource and Administrative Services
Glenn P. Barba Vice President, Controller and Chief Accounting Officer
Thomas W. Elward President and Chief Operating Officer of CMS Enterprises Company
John G. Russell President and Chief Operating Officer of Consumers Energy Company
Merribel S. Ayers Director
Earl D. Holton Director
Michael T. Monahan Director
Joseph F. Paquette, Jr. Director
William U. Parfet Director
Percy A. Pierre Director
Kenneth L. Way Director
John B. Yasinsky Director
The address of each director and/or executive officer listed above is c/o
CMS Energy Corporation, One Energy Plaza, Jackson, Michigan 49201, and each such
person's telephone number is (517) 788-0550.
ITEM 4. TERMS OF THE TRANSACTION.
a) The information set forth in the Offering Memorandum, most
specifically under the sections captioned "The Exchange Offer" and
"Description of the New Preferred Stock" is incorporated herein by
reference.
b) None of the securities are to be purchased from any officer,
director, or affiliate of CMS Energy Corporation.
2
ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.
c) The information set forth in the Offering Memorandum, most
specifically under the section captioned "CMS Energy -- Agreements
Relating to Our Securities" is incorporated herein by reference.
ITEM 6. PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS.
a) The information set forth in the Offering Memorandum, most
specifically in the section captioned
"Summary Term Sheet -- Why are we making the Exchange Offer?" is
incorporated herein by reference.
b) The securities acquired pursuant to the Exchange Offer will be
retired.
c) Not applicable.
ITEM 7. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
a) The information set forth in the Offering Memorandum, most
specifically in the section captioned "The Exchange Offer" is
incorporated herein by reference.
b) The information set forth in the Offering Memorandum, most
specifically in the section captioned "The Exchange Offer" is
incorporated herein by reference.
d) Not applicable.
ITEM 8. INTEREST IN SECURITIES OF THE SUBJECT COMPANY.
a) None of the persons named in Item 3 above (in response to Item 1003
of Regulation M-A), nor any associates or majority-owned
subsidiaries of such persons, beneficially owns any of the subject
securities.
b) None.
ITEM 9. PERSONS/ASSETS, RETAINED, EMPLOYED, COMPENSATED OR USED.
a) No persons or classes of persons have been directly or indirectly
employed, retained, or are to be compensated to make solicitations
or recommendations in connection with the Exchange Offer.
ITEM 10. FINANCIAL STATEMENTS.
a) Financial Information. The following financial statements and
financial information are incorporated herein by reference:
1) The audited consolidated financial statements of CMS Energy
Corporation set forth in CMS Energy Corporation's Annual
Report on Form 10-K/A for the fiscal year ended December 31,
2003.
2) The unaudited condensed consolidated financial statements of
CMS Energy Corporation set forth in CMS Energy Corporation's
Quarterly Report on Form 10-Q for the fiscal quarter ended
September 30, 2004.
3) The information set forth in the Offering Memorandum, most
specifically the section captioned "Ratio of Earnings to Fixed
Charges."
4) The information set forth in the Offering Memorandum, most
specifically in the section captioned "Book Value Per Share."
Copies of the financial statements incorporated herein by
reference pursuant to clauses (1) and (2) of this paragraph 10(a)
can be obtained as provided in the section of the Offering
Memorandum captioned "Where You Can Find More Information."
b) Not Material.
ITEM 11. ADDITIONAL INFORMATION.
a) Agreements, regulatory requirements and legal proceedings.
1) None.
2) CMS Energy Corporation must file a Certificate of Designation
relating to the new 4.50% Cumulative Convertible Preferred
Stock, which will be offered in exchange for the Preferred
Stock, with the Michigan Department of
3
Consumer & Industry Services, Bureau of Commercial Services.
3) Not applicable.
4) Not applicable.
5) Not applicable.
b) Other material information. None.
ITEM 12. EXHIBITS.
(a)(1) Offering Memorandum dated November 9, 2004.
(a)(2) Letter of Transmittal.
(a)(3) Letter to Holders.
(a)(4) Notice of Guaranteed Delivery.
(a)(5) Guidelines for Certification of Taxpayer Identification Number
on Substitute Form W-9.
(a)(6) News Release dated November 9, 2004.
(b) None.
(d)(1) Form of Certificate of Designation to CMS Energy Articles of
Incorporation.
(d)(2) Indenture dated as of September 15, 1992 between CMS Energy
and NBD Bank, as Trustee (previously filed as exhibit (4)(a)
to Form S-3 filed May 1, 1992).
(d)(3) - Thirteenth Supplemental Indenture dated July 16, 2003
(previously filed as exhibit (4)(e)(i) to 2003 Form 10-K).
(d)(4) Certificate of Designation to CMS Energy Articles of
Incorporation filed with the Michigan Department of Consumer &
Industry Services, Bureau of Commercial Services on December
4, 2003 (previously filed with the Restated Articles of
Incorporation of CMS Energy as exhibit (99)(a) to Form 8-K
filed June 3, 2004).
(d)(5) Warrant for the Purchase of Shares of Common Stock issued by
CMS Energy to Miller Buckfire
Lewis & Co., LLC on May 6, 2003.
(d)(6) Warrant for the Purchase of Shares of Common Stock issued by
CMS Energy to Dresdner Kleinwort
Wasserstein, Inc. on May 6, 2003.
(d)(7) Annual Officer Incentive Compensation Plan for CMS Energy
Corporation and its Subsidiaries effective January 1, 2003
(previously filed as exhibit (10)(i) to 2003 Form 10-K).
(d)(8) Supplemental Executive Retirement Plan for Employees of CMS
Energy/Consumers Energy Company effective January 1, 1982, as
amended December 3, 1999 (previously filed as exhibit (10)(h)
to 1999 Form 10-K).
(d)(9) CMS Energy Corporation Policy on Change in Control Agreements
and Employment Contracts (previously filed as exhibit (10)(b)
to Form 10-Q for the quarter ended June 30, 2004).
(d)(10) CMS Energy Corporation Performance Incentive Stock Plan
(previously filed as exhibit (99)(b) to Form 8-K filed June 3,
2004).
(g) None.
(h) None.
4
SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify that the
information set forth in this statement is true, complete and correct.
/s/ Thomas J. Webb
----------------------------------------
(Name) Thomas J. Webb
(Title) Executive Vice President and
Chief Financial Officer
November 9, 2004
---------------------------------------
(Date)
5