UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
AMENDMENT NO. 1 TO
SCHEDULE TO
Tender Offer Statement under Section 14(d)(1) or 13(e)(1)
of the Securities Exchange Act of 1934
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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).
** Calculated in accordance with Rule 0-11 based on the transaction value
multiplied by one-fiftieth of one percent.
[ ] 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: [ ]
This Amendment No. 1 amends and supplements the Tender Offer Statement on
Schedule TO originally filed with the Securities and Exchange Commission on
November 9, 2004 (the "Schedule TO") by CMS Energy Corporation, a Michigan
corporation ("CMS Energy"), relating to the offer to exchange (the "Exchange
Offer") up to 5,000,000 shares of CMS Energy's 4.50% Cumulative Convertible
Preferred Stock (liquidation preference $50.00 per share) (the "New Preferred
Stock") for a like number of shares of CMS Energy's issued and outstanding 4.50%
Cumulative Convertible Preferred Stock (liquidation preference $50.00 per share)
(the "Old Preferred Stock") from the registered holders thereof upon the terms
and subject to the conditions contained in the Offering Memorandum dated
November 9, 2004 (the "Offering Memorandum") and the related Letter of
Transmittal, which together, as each may be amended and supplemented from time
to time, constitute the tender offer. This Amendment No. 1 is intended to
satisfy the reporting requirements of Rule 13e-4(c)(3) of the Securities
Exchange Act of 1934, as amended. Copies of the Offering Memorandum and the
Letter of Transmittal were previously filed with the Schedule TO as Exhibits
(12)(a)(1) and (12)(a)(2), respectively.
The information in the Offering Memorandum and the Letter of Transmittal is
incorporated in this Amendment No. 1 to the Schedule TO by reference in response
to all of the applicable items in the Schedule TO, except that such information
is hereby amended and supplemented to the extent specifically provided herein.
ITEMS 1 THROUGH 11.
Items 1 through 11 of the Schedule TO, which incorporate by reference the
information contained in the Offering Memorandum and the Letter of Transmittal,
copies of which were filed with the Schedule TO as Exhibits (12)(a)(1) and
(12)(a)(2), respectively, are hereby amended as follows:
1. The first paragraph set forth under "Forward-Looking Statements and
Information" on page ii of the Offering Memorandum is hereby deleted in its
entirety and replaced with the following:
This offering memorandum contains forward-looking statements as defined
in Rule 175 under the Securities Act and Rule 3b-6 under the Securities
Exchange Act of 1934, as amended (the "EXCHANGE ACT") and relevant legal
decisions. Our intention with the use of such words as "may," "could,"
"anticipates," "believes," "estimates," "expects," "intends," "plans" and
other similar words is to identify forward-looking statements that involve
risk and uncertainty. We designed this discussion of potential risks and
uncertainties to highlight important factors that may impact our business
and financial outlook. These forward-looking statements are subject to
various factors that could cause our actual results to differ materially
from the results anticipated in these statements. Such factors include our
inability to predict and/or control:
2. The third paragraph set forth under "Where You Can Find More Information" on
page 4 of the Offering Memorandum is hereby deleted in its entirety.
3. The information set forth under "Summary -- The Exchange Offer -- Conditions
of the Exchange Offer" on page 6 of the Offering Memorandum is hereby deleted in
its entirety and replaced with the following:
The Exchange Offer is not conditioned upon the valid tender of any minimum
number of shares of Old Preferred Stock. However, the Exchange Offer is
conditioned upon the absence of any of the following events:
o a business development, lawsuit or investigation which would likely
have a material adverse affect on our business (subject to certain
conditions);
o any general suspension of, or limitation on prices for, trading in
securities in United States securities or financial markets;
o any significant impairment to the extension of credit by banking
institutions, or to the regular trading of equity or debt securities
in the United States; or
o the commencement or significant worsening of a war or armed
hostilities or other national or international calamity, including,
but not limited to, additional catastrophic terrorist attacks against
the United States or its citizens (recent escalations of and ongoing
hostility in Iraq and Afghanistan have not triggered this condition).
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We will not be required, but we reserve the right, to accept for
exchange any Old Preferred Stock tendered (or, alternatively, we may
terminate the Exchange Offer) if any condition of the Exchange Offer as
described under "The Exchange Offer--Conditions" remains unsatisfied.
4. The last sentence set forth under "The Exchange Offer -- Acceptance of the
Old Preferred Stock for Exchange; Delivery of New Preferred Stock" on page 51 of
the Offering Memorandum is amended by deleting the phrase "as promptly as
practicable" and substituting the word "promptly."
5. The information set forth under "The Exchange Offer -- Conditions" on pages
52 and 53 of the Offering Memorandum is hereby deleted in its entirety and
replaced with the following:
Notwithstanding any other provision of the Exchange Offer, we will not
be required to accept for exchange Old Preferred Stock tendered pursuant to
the Exchange Offer and may terminate, extend or amend the Exchange Offer
and may postpone the acceptance for exchange of Old Preferred Stock so
tendered on or prior to the Expiration Date, if any of the following
conditions has occurred, or the occurrence thereof has not been waived by
us in our sole discretion, on or prior to the Expiration Date:
o there shall have been instituted, threatened or be pending any action
or proceeding before or by any court, governmental, regulatory or
administrative agency or instrumentality, or by any other person, in
connection with the Exchange Offer, that is, or is reasonably likely
to be, in our reasonable judgment, materially adverse to our
business, operations, properties, condition (financial or otherwise),
assets, liabilities or prospects, or which would or might, in our
reasonable judgment, prohibit, prevent, restrict or delay
consummation of the Exchange Offer; provided, however, that this
condition shall not be deemed to apply to our previously announced
United States Department of Justice investigation of round-trip
trading at CMS MST and certain shareholder lawsuits as described in
the Risk Factors;
o there shall have occurred any development which would, in our
reasonable judgment, materially adversely affect our business
(excluding actions or omissions to act by us that results in such
development);
o an order, statute, rule, regulation, executive order, stay, decree,
judgment or injunction shall have been proposed, enacted, entered,
issued, promulgated, enforced or deemed applicable by any court or
governmental, regulatory or administrative agency or instrumentality
that, in our reasonable judgment, would or might prohibit, prevent,
restrict or delay consummation of the Exchange Offer, or that is, or
is reasonably likely to be, materially adverse to our business,
operations, properties, condition (financial or otherwise), assets,
liabilities or prospects; provided, however, that this condition
shall not be deemed to apply to our previously announced United
States Department of Justice investigation of round-trip trading at
CMS MST and certain shareholder lawsuits as described in the Risk
Factors;
o there shall have occurred or be likely to occur any event affecting
our business or financial affairs, that, in our reasonable judgment,
would or might prohibit, prevent, restrict or delay consummation of
the Exchange Offer (excluding actions or omissions to act by us that
results in such development); or
o the trustee of the Old Preferred Stock shall have objected in any
respect to any action taken that could, in our reasonable judgment,
adversely affect the consummation of the Exchange Offer, or shall
have taken any action that challenges the validity or effectiveness
of the procedures used by us in making the Exchange Offer or the
acceptance of, or exchange for, the Old Preferred Stock; or
there shall have occurred:
o any general suspension of, or limitation on prices for,
trading in securities in United States securities or financial
markets;
o a material impairment in the trading market for debt
securities;
o a declaration of a banking moratorium or any suspension of
payments in respect to banks in the United States;
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o any limitation (whether or not mandatory) by any government or
governmental, administrative or regulatory authority or
agency, domestic or foreign, or other event that, in our
reasonable judgment, might affect the extension of credit by
banks or other lending institutions;
o a commencement or significant worsening of a war or armed
hostilities or other national or international calamity,
including but not limited to, additional catastrophic
terrorist attacks against the United States or its citizens
(recent escalations of and ongoing hostility in Iraq and
Afghanistan have not triggered this condition); or
o in the case of any of the foregoing existing on the date
hereof, a material acceleration or worsening thereof.
The conditions to the Exchange Offer are for our sole benefit and may be
asserted by us in our reasonable discretion or may be waived by us, in
whole or in part, in our reasonable discretion, whether or not any other
condition of the Exchange Offer also is waived. We have not made a decision
as to what circumstances would lead us to waive any such condition, and any
such waiver would depend on circumstances prevailing at the time of such
waiver. Any determination by us concerning the events described in this
section will be final and binding upon all persons. In the event we waive
any condition to the Exchange Offer, we will waive such condition for all
holders of Old Preferred Stock.
Other than the United States federal and state securities laws we do not
need to satisfy any regulatory requirements or obtain any regulatory
approvals to conduct the Exchange Offer.
6. The last sentence of the second complete paragraph on page 9 of the Letter of
Transmittal is amended by deleting the phrase "as soon as practicable" and
substituting the word "promptly."
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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
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(Name) Thomas J. Webb
(Title) Executive Vice President
Chief Financial Officer
November 29, 2004
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(Date)
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