--------------------------------------------------------------------------------
FORM 8-K
CURRENT REPORT
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED) DECEMBER 2, 2003
COMMISSION REGISTRANT; STATE OF INCORPORATION; IRS EMPLOYER
FILE NUMBER ADDRESS; AND TELEPHONE NUMBER IDENTIFICATION NO.
----------- ----------------------------- ------------------
1-9513 CMS ENERGY CORPORATION 38-2726431
(A MICHIGAN CORPORATION)
ONE ENERGY PLAZA
JACKSON, MICHIGAN 49201
(517) 788-0550
1-5611 CONSUMERS ENERGY COMPANY 38-0442310
(A MICHIGAN CORPORATION)
ONE ENERGY PLAZA
JACKSON, MICHIGAN 49201
(517) 788-0550
ITEM 5. OTHER EVENTS
SHAREHOLDER DERIVATIVE SUIT
In May of 2002, the Board of Directors of CMS Energy Corporation ("CMS Energy")
received a demand from a shareholder to commence civil actions (i) to remedy
alleged breaches of fiduciary duties by CMS Energy officers and directors in
connection with round trip trading at CMS Marketing, Services and Trading
Company, a subsidiary of CMS Energy and (ii) to recover damages sustained by CMS
Energy as a result of alleged insider trades alleged to have been made by
certain current and former officers of CMS Energy and its subsidiaries. In
December 2002, two new directors were appointed to the CMS Energy Board of
Directors. A special litigation committee was formed by the Board in January
2003 to determine whether it is in the best interest of CMS Energy to bring the
action demanded by the shareholder. The disinterested members of the Board
appointed the two new directors to serve on the Committee.
On December 2, 2003, during the continuing review by the special litigation
committee, CMS Energy was served with a derivative complaint filed by the
shareholder in the Circuit Court of Jackson County, Michigan in furtherance of
his demands. CMS Energy intends to seek an extension of time to answer or
otherwise respond to the complaint in order for the special litigation committee
to complete its review.
ISSUANCE OF CUMULATIVE CONVERTIBLE PREFERRED STOCK
On December 5, 2003, CMS Energy sold $250 million of 4.50% cumulative
convertible preferred stock (par value $0.01 per share) (liquidation preference
$50 per share) (the "Preferred Stock"). The Preferred Stock, offered in a
private placement under Rule 144A of the Securities Act of 1933, was purchased
by certain financial institutions as initial purchasers. The approximately
$242.5 million of net proceeds from this issuance will be used to reduce debt.
Holders of the Preferred Stock may convert their stock into shares of CMS Energy
Common Stock (the "Common Stock") under certain circumstances. For each share of
Preferred Stock surrendered for conversion, the holder will receive 5.0541
shares of Common Stock, which represents an initial conversion price of $9.893
per share (subject to adjustment in certain events). On or after December 5,
2008, under certain circumstances CMS Energy may have the right to cause the
Preferred Stock to be automatically converted into shares of Common Stock at the
then applicable conversion price.
The Preferred Stock and the Common Stock issuable upon conversion have not been
registered under the Securities Act of 1933 and therefore may not be offered or
sold in the United States absent registration or an applicable exemption from
registration requirements. CMS Energy is contractually committed to file a shelf
registration statement with the Securities and Exchange Commission covering
resales of the Preferred Stock and the Common Stock issuable upon conversion.
This Form 8-K contains "forward-looking statements", within the meaning of the
safe harbor provisions of the federal securities laws. The "forward-looking
statements" are subject to risks and uncertainties. They should be read in
conjunction with the "CMS ENERGY FORWARD-LOOKING STATEMENTS, CAUTIONARY FACTORS
AND UNCERTAINTIES" found in Item 1 of CMS Energy's Form 10-K/A filed on July 1,
2003 for the Fiscal Year Ended December 31, 2002 and the "CONSUMERS
FORWARD-LOOKING STATEMENTS, CAUTIONARY FACTORS AND UNCERTAINTIES" found in Item
1 of Consumers' Form 10-K for the Fiscal Year Ended December 31, 2002 (both
incorporated herein by reference), that discuss important factors that could
cause CMS Energy's and Consumers' results to differ materially from those
anticipated in such statements.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrants have duly caused this report to be signed on their behalf by the
undersigned hereunto duly authorized.
CMS ENERGY CORPORATION
Dated: December 5, 2003
By: /s/ Thomas J. Webb
-------------------
Thomas J. Webb
Executive Vice President and
Chief Financial Officer
CONSUMERS ENERGY COMPANY
Dated: December 5, 2003
By: /s/ Thomas J. Webb
-------------------
Thomas J. Webb
Executive Vice President and
Chief Financial Officer