As filed with the Securities and Exchange Commission on June 1, 2020

 

Registration No. 333-                      

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

 

Form S-8

 

REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933

 

 

 

CMS ENERGY CORPORATION

(Exact name of registrant as specified in its charter)

 

Michigan  38-2726431
(State or other jurisdiction of incorporation or organization)  (I.R.S. Employer Identification No.)

 

One Energy Plaza, Jackson, Michigan 49201

(Address of Principal Executive Offices) (Zip Code)

 

CMS Energy Corporation 2020 Performance Incentive Stock Plan
(Full title of the plan)

 

Rejji P. Hayes

Executive Vice President and Chief Financial Officer

CMS Energy Corporation

One Energy Plaza

Jackson, Michigan 49201

(Name and address of agent for service)

 

(517) 788-1040

(Telephone number, including area code, of agent for service)

 

It is respectfully requested that the Commission send copies of all notices, orders and communications to:

 

Melissa M. Gleespen, Esq.

Vice President, Corporate Secretary and Chief Compliance Officer

CMS Energy Corporation

One Energy Plaza

Jackson, Michigan 49201

(517) 788-2158

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company,” and “emerging growth company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer  x  Accelerated filer ¨  Non-accelerated filer ¨  Smaller reporting company ¨
Emerging growth company ¨         

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act.

 

CALCULATION OF REGISTRATION FEE

 

       Proposed maximum   Proposed maximum   Amount of 
Title of securities  Amount to be   offering price   aggregate   registration 
to be registered  registered   per share   offering price   fee 
Common stock, par value $0.01 per share   6,500,000(1)    $55.155(2)    $358,507,500(2)    $46,535 

 

(1)   Pursuant to Rule 416 of the Securities Act of 1933 (the “Securities Act”), this Registration Statement shall also cover any additional shares of Common Stock that become issuable under the CMS Energy Corporation 2020 Performance Incentive Stock Plan (the “Plan”) by reason of any stock dividend, stock split, recapitalization or other similar transaction effected which results in an increase in the number of the Company’s outstanding shares of Common Stock issuable pursuant to awards granted under the Plan.
     
(2)   Estimated solely for the purpose of computing the registration fee pursuant to Rules 457(c) and (h) on the basis of the average of the high and low sales prices of the Common Stock on the New York Stock Exchange on May 27, 2020.

 

 

 

 

 

 

TABLE OF CONTENTS

 

PART I  
    Item 1.  Plan Information  
    Item 2.  Registrant Information and Employee Plan Annual Information  
PART II  
    Item 3. Incorporation of Documents by Reference  
    Item 4. Description of Securities  
    Item 5. Interests of Named Experts and Counsel  
    Item 6.  Indemnification of Directors and Officers  
    Item 7.  Exemption from Registration Claimed  
    Item 8. Exhibits  
    Item 9.  Undertakings  
SIGNATURES  
Opinion of Melissa M. Gleespen  
Consent of PricewaterhouseCoopers LLP  
Power of Attorney  

 

 

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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS

 

Information specified in Part I of Form S-8 (Items 1 and 2) will be sent or given to plan participants as specified by Rule 428(b)(1) under the Securities Act of 1933.

 

PART II

INFORMATION REQUIRED IN THE REGISTRATION STATEMENT

 

Item 3.    Incorporation of Documents by Reference.

 

The following documents heretofore filed with the Securities and Exchange Commission (the “Commission”) (Commission file number 1-09513) by CMS Energy Corporation (“CMS Energy” or the “Company”) are incorporated herein by reference:

 

    The Company’s Annual Report on Form 10-K for the year ended December 31, 2019;

 

    The Company’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2020;
       
    The description of the Company’s Common Stock contained in the Company’s Registration Statement on Form S-3 dated February 28, 2020;
       
    All other reports filed by the Registrant pursuant to Sections 13(a) or 15(d) of the Securities Exchange Act of 1934 (the “Exchange Act”) (other than information contained in Current Reports on Form 8-K that is deemed furnished and not filed), since the end of the fiscal year covered by the annual report on Form 10-K referred to above; and

 

All documents filed (but not “furnished”) by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act, after the date of this Registration Statement and prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities then remaining unsold, are deemed to be incorporated by reference in this Registration Statement and to be a part hereof from the respective dates of filing of such documents (such documents, and the documents enumerated above, being hereinafter referred to as “Incorporated Documents”).

 

Any statement contained in an Incorporated Document shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently filed Incorporated Document modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration Statement.

 

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Item 4.    Description of Securities.

 

Not applicable.

 

Item 5.    Interests of Named Experts and Counsel.

 

Certain legal matters with respect to the offering of the securities will be passed on for the Company by Melissa M. Gleespen, who is the Company’s Vice President, Corporate Secretary and Chief Compliance Officer. Ms. Gleespen is an employee and shareholder of the Company. She may also receive awards under the Plan.

 

Item 6.    Indemnification of Directors and Officers.

 

The following resolution was adopted by the Company’s board of directors on January 27, 2011:

 

RESOLVED: That effective January 27, 2011 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 or employee of the Corporation, or is or was serving at the documented 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 or employee of the Corporation or is or was serving at the documented 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.

Article XIII, Section 1 of the Company’s Amended and Restated Bylaws, as amended and restated, provides:

 

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.

 

Article VIII of the Company’s Restated Articles of Incorporation, as amended, 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(1) of the Michigan Business Corporation Act, and (iv) for any transaction from which the director derived an improper personal benefit. No amendment to or repeal of this Article VIII, and no modification to its provisions by law, shall apply to, or have any effect upon, the liability or alleged liability of any director of the Corporation for or with respect to any acts or omissions of such director occurring prior to such amendment, repeal or modification.

 

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Article IX of the Company’s Restated Articles of Incorporation, as amended, 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 hereafter existing statute, any other provision of these Articles, bylaw, agreement, vote of shareholders or otherwise. If the Business Corporation Act of the State of Michigan is amended after approval by the shareholders of this Article IX to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the Business Corporation Act of the State of Michigan, as so amended. Any repeal or modification of this Article IX by the shareholders of the Corporation shall not adversely affect any right or protection of a director of the Corporation existing at the time of such repeal or modification.

 

Sections 561 through 571 of the Michigan Business Corporation Act provide 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 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 or officers of 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.

 

Item 7.    Exemption from Registration Claimed.

 

Not applicable.

 

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Item 8.    Exhibits.

 

EXHIBIT INDEX

 

Exhibits listed below that have been previously filed with the Commission are incorporated herein by reference with the same effect as if filed with this Registration Statement.

 

Exhibit Numbers   Description
4.1   Restated Articles of Incorporation of the Company effective June 1, 2004, as amended May 22, 2009 (included as Exhibit (3)(a) to the Company’s Quarterly Report on Form 10-Q for the quarter ended June 30, 2009 and incorporated herein by reference)
     
4.2   Amended and Restated Bylaws of the Company, as of February 8, 2016 (included as Exhibit 3.2 to the Company’s Current Report on Form 8-K filed February 8, 2016 and incorporated herein by reference)
     
4.3   CMS Energy Corporation 2020 Performance Incentive Stock Plan (included as Exhibit 10.1 to the Company’s Current Report on Form 8-K filed on May 5, 2020 and incorporated herein by reference)
     
5.1*   Opinion of Melissa M. Gleespen, Vice President, Corporate Secretary and Chief Compliance Officer for the Company
     
23.1*   Consent of Melissa M. Gleespen, Vice President, Corporate Secretary and Chief Compliance Officer for the Company (included in Exhibit 5.1)
     
23.2*   Consent of PricewaterhouseCoopers LLP
     
24.1*   Power of Attorney

 

*Filed herewith

 

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Item 9.    Undertakings. 

 

(a)The undersigned Registrant hereby undertakes:

 

(1)To file, during any period in which offers or sales are being made, a post-effective amendment to this Registration Statement:

 

(i)To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;

 

(ii)To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement.  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 20 percent 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 paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in 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 a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.

 

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(b)The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement 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.

 

(c)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 foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable.  In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Jackson, State of Michigan, on the 1st day of June 2020.

 

    CMS Energy Corporation
(Registrant)
     
     
    By: /s/ Rejji P. Hayes
      Name: Rejji P. Hayes
      Title: Executive Vice President and
Chief Financial Officer

 

Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on the 1st day of June 2020.

 

(i)           Principal executive officer:

 

 

/s/ Patricia K. Poppe
Patricia K. Poppe
President and Chief Executive Officer

 

(ii)          Principal financial officer:

 

 

/s/ Rejji P. Hayes
Rejji P. Hayes
Executive Vice President and Chief Financial Officer

 

(iii)         Controller or principal accounting officer:

 

 

/s/ Glenn P. Barba
Glenn P. Barba
Vice President, Controller, and Chief Accounting Officer

 

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(iv)         The Directors:

 

Jon E. Barfield*

Deborah H. Butler*

Kurt L. Darrow*

William D. Harvey*

Patricia K. Poppe*

John G. Russell*

Suzanne F. Shank*

Myrna M. Soto*

John G. Sznewajs*

Ronald J. Tanski*

Laura H. Wright*

 

 

*By: /s/ Rejji P. Hayes
  Rejji P. Hayes, Attorney-in-Fact

 

 

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Exhibit 5.1

 

 

 

 

    Melissa M. Gleespen
    Vice President, Corporate Secretary
    and Chief Compliance Officer

 

June 1, 2020

 

CMS Energy Corporation
One Energy Plaza
Jackson, MI 49201

 

Ladies and Gentlemen:

 

I am the Vice President and Corporate Secretary of CMS Energy Corporation, a Michigan corporation (the “Corporation”) and have acted as such in connection with the Registration Statement on Form S-8 (the “Registration Statement”) being filed on the date hereof by the Corporation with the Securities and Exchange Commission under the Securities Act of 1933 (the “Securities Act”), relating to the registration of Common Stock, $.01 par value, of the Corporation (the “Common Stock”), which may be awarded, issued, or sold to employees of the Corporation pursuant to the Corporation’s 2020 Performance Incentive Stock Plan (the “Plan”).

 

I am of the opinion that when the applicable provisions of the Securities Act are complied with, the Common Stock will be, as and when acquired in accordance with the terms and conditions of the Plan, legally issued, fully paid and non-assessable.

 

I do not find it necessary for the purposes of this opinion to cover, and accordingly express no opinion as to, the application of the securities or Blue Sky Laws of the various states to the sale of the Common Stock.

 

I hereby consent to the filing of this opinion as an exhibit to the Registration Statement.

 

Sincerely,  
   
/s/ Melissa M. Gleespen  
   
Melissa M. Gleespen  

 

 

 

 

Exhibit 23.2

 

CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

 

We hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of CMS Energy Corporation of our report dated February 6, 2020 relating to the financial statements, financial statement schedules and the effectiveness of internal control over financial reporting, which appears in CMS Energy Corporation's Annual Report on Form 10-K for the year ended December 31, 2019.

 

/s/ PricewaterhouseCoopers LLP

 

PricewaterhouseCoopers LLP
Detroit, Michigan
June 1, 2020

 

 

Exhibit 24.1

 

 

 

May 1, 2020

 

Shaun M. Johnson

Melissa M. Gleespen

Rejji P. Hayes

CMS Energy Corporation

One Energy Plaza

Jackson, MI 49201

 

We hereby appoint each of you lawful attorney for each of us and in each of our names to sign and cause to be filed with the Securities and Exchange Commission registration statement(s) and/or any amendment(s) thereto, including post-effective amendment(s), to be accompanied in each case by a prospectus or supplemental prospectus and any necessary exhibits with respect to the issuance of up to 6,500,000 additional shares of the CMS Energy Corporation’s (the “Corporation”) Common Stock, .01 par value, from time to time, pursuant to the provisions of the 2020 Performance Incentive Stock Plan of the Corporation.

 

Very truly yours,

 

/s/ John G. Russell   /s/ Suzanne F. Shank
John G. Russell   Suzanne F. Shank
     
/s/ Jon E. Barfield   /s/ Myrna M. Soto
Jon E. Barfield   Myrna M. Soto
     
/s/ Deborah H. Butler   /s/ John G. Sznewajs
Deborah H. Butler   John G. Sznewajs
     
/s/ Kurt L. Darrow   /s/ Ronald J. Tanski
Kurt L. Darrow   Ronald J. Tanski
     
/s/ William D. Harvey   /s/ Laura H. Wright
William D. Harvey   Laura H. Wright
     
/s/ Patricia K. Poppe    
Patricia K. Poppe    

 

One Energy Plaza Jackson, MI 49201 - Tel: 517 788 0550 – www.cmsenergy.com