Item 3.03. Material Modification to Rights of Security Holders.
On July 1, 2021, CMS Energy Corporation ("CMS Energy") issued and sold 9,200,000
depositary shares (the "Depositary Shares"), each representing a 1/1,000th
interest in a share of its 4.200% Cumulative Redeemable Perpetual Preferred
Stock, Series C (Liquidation Preference Equivalent to $25.00 per Depositary
Share) (the "Preferred Stock") pursuant to the Underwriting Agreement filed as
Exhibit 1.1 to this Current Report on Form 8-K for net proceeds (after
underwriting discounts and before expenses) of $224,498,112.50. Under the terms
of the Preferred Stock and subject to certain exceptions, CMS Energy may not
declare or pay dividends on, and it and its subsidiaries may not purchase,
redeem or otherwise acquire for consideration, shares of CMS Energy's common
stock or any class or series of capital stock of CMS Energy that rank junior to
the Preferred Stock, unless CMS Energy has declared and paid the cumulative
dividends on the Preferred Stock for all preceding dividend periods (or a sum
sufficient for the payment therefor has been set aside). The terms of the
Preferred Stock, including such restrictions, are more fully described in, and
this description is qualified in its entirety by reference to, the Certificate
of Designation (as defined in Item 5.03 below), a copy of which is filed as
Exhibit 3.1 to this Current Report on Form 8-K and is incorporated herein by
reference.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year.
Effective June 29, 2021, CMS Energy amended its Restated Articles of
Incorporation to create the Preferred Stock by filing its Preferred Stock
Certificate of Designation with the Michigan Department of Licensing and
Regulatory Affairs, Bureau of Commercial Services - (the "Certificate of
Designation"). The Preferred Stock has the terms set forth in the Certificate of
Designation, a copy of which (including the form of certificate evidencing the
shares of the Preferred Stock) is filed as Exhibit 3.1 to this Current Report on
Form 8-K and is incorporated in this Item 5.03 by reference.
Item 8.01. Other Events.
The Preferred Stock and the associated Depositary Shares were sold, pursuant to
a Registration Statement on Form S-3 that CMS Energy filed with the Securities
and Exchange Commission utilizing a "shelf" registration process (No.
333-236742) (the "Registration Statement"), a Preliminary Prospectus Supplement
dated June 24, 2021 to the Prospectus dated February 28, 2020, an Issuer Free
Writing Prospectus that included the final terms of the transaction, a Final
Prospectus Supplement dated June 24, 2021 to the Prospectus dated February 28,
2020 and the Underwriting Agreement filed as Exhibit 1.1 to this Current Report
on Form 8-K, all relating to the Preferred Stock and such Depositary Shares. CMS
Energy intends to use the net proceeds for general corporate purposes, including
working capital and repayment of indebtedness.
In connection with the issuance of the Depositary Shares, CMS Energy entered
into a Deposit Agreement, dated as of July 1, 2021 (the "Deposit Agreement"), by
and among CMS Energy, Equiniti Trust Company and the holders from time to time
of the depositary receipts described therein (the "Depositary Receipts")
evidencing the Depositary Shares. The shares of Preferred Stock were deposited
against delivery of the Depositary Receipts pursuant to the Deposit Agreement. A
copy of the Deposit Agreement is filed as Exhibit 4.2 to this Current Report on
Form 8-K and the form of Depositary Receipt is filed as Exhibit 4.3 to this
Current Report on Form 8-K, each of which are incorporated herein by reference.
This Current Report on Form 8-K is being filed to file certain related documents
in connection with the offering as exhibits to the Registration Statement.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
1.1 Underwriting Agreement dated June 24, 2021 among CMS Energy and BofA
Securities, Inc., Morgan Stanley & Co. LLC, RBC Capital Markets, LLC and
Wells Fargo Securities, LLC, as representatives of the underwriters named
therein.
3.1 Certificate of Designation of 4.200% Cumulative Redeemable Perpetual
Preferred Stock, Series C, dated June 28 , 2021.
4.1 Form of Certificate Representing 4.200% Cumulative Redeemable Perpetual
Preferred Stock, Series C (included in Exhibit 3.1).
4.2 Deposit Agreement, dated as of July 1, 2021, among CMS Energy, Equiniti
Trust Company, and the holders from time to time of the depositary
receipts described therein.
4.3 Form of Depositary Receipt (included in Exhibit 4.2).
5.1 Opinion of Melissa M. Gleespen, Esq., Vice President, Corporate
Secretary and Chief Compliance Officer of CMS Energy, dated July 1, 2021,
regarding the legality of the Depositary Shares and the 4.200% Cumulative
Redeemable Perpetual Preferred Stock, Series C.
23.1 Consent of Melissa M. Gleespen, Esq. (included in Exhibit 5.1).
99.1 Information relating to Item 14 of the Registration Statement on Form
S-3 (No. 333-236742).
104 Cover Page Interactive Data File (the cover page XBRL tags are embedded in
the Inline XBRL document).
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