UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event
reported)
| Commission | Registrant; State of Incorporation; | IRS Employer | ||
| File Number | Address; and Telephone Number | Identification No. | ||
|
(A |
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
| , each representing a 1/1,000th interest in a share of 4.200% Cumulative Redeemable Perpetual Preferred Stock, Series C |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
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 13(a) of the Exchange Act. ¨
Item 8.01. Other Events.
In connection with the commencement of an equity offering program under which shares (the “Shares”) of the common stock of CMS Energy Corporation (“CMS Energy”) having an aggregate sales price of up to $1,000,000,000 may be offered and sold from time to time (the “Offering”), CMS Energy filed today with the Securities and Exchange Commission (the “SEC”) a prospectus supplement dated December 7, 2023 (the “Prospectus Supplement”). The Shares may be offered and sold in amounts and at times to be determined by CMS Energy from time to time, but CMS Energy has no obligation to offer and sell any of the Shares in the Offering. Actual sales will depend on a variety of factors to be determined by CMS Energy from time to time, including (among others) market conditions, the trading price of CMS Energy’s common stock and determinations by CMS Energy of the appropriate sources of funding for CMS Energy.
The Offering will occur pursuant to an equity distribution agreement (“Agreement”) entered into among (A) CMS Energy, (B) Barclays Bank PLC, JPMorgan Chase Bank, National Association, KeyBanc Capital Markets Inc., Mizuho Markets Americas LLC, Royal Bank of Canada and The Bank of Nova Scotia, each in its capacity as purchaser under any forward sale agreement (the “Forward Purchasers”), and (C) Barclays Capital Inc., J.P. Morgan Securities LLC, KeyBanc Capital Markets Inc., Mizuho Securities USA LLC, RBC Capital Markets, LLC and Scotia Capital (USA) Inc., each in its capacity as agent for CMS Energy and/or principal (the “Agents”), and each in its capacity as agent for the related Forward Purchaser (the “Forward Sellers”). The Agents and the Forward Sellers will be entitled to compensation as provided under the terms of the Agreement.
In connection with each particular forward sale transaction, the relevant Forward Purchaser or its affiliate will, at CMS Energy’s request, borrow from third parties and, through the relevant Forward Seller, sell a number of the Shares equal to the number of Shares underlying the particular forward sale transaction.
CMS Energy will not receive any proceeds from the sale of borrowed shares by a Forward Seller. CMS Energy expects to physically settle each particular forward sale transaction with the relevant Forward Purchaser on one or more dates specified by CMS Energy on or prior to the maturity date of that particular forward sale agreement, in which case CMS Energy expects to receive per share cash proceeds at settlement equal to the forward sale price under the relevant forward sale agreement. However, CMS Energy may elect to cash settle or net share settle a particular forward sale transaction, in which case CMS Energy may not receive any proceeds (in the case of cash settlement) or will not receive any proceeds (in the case of net share settlement), and CMS Energy may owe cash (in the case of cash settlement) or shares (in the case of net share settlement) to the relevant Forward Purchaser.
Sales of the Shares, if any, under the Agreement may be made in privately negotiated transactions or transactions that are deemed to be “at the market offerings” as defined in Rule 415 under the Securities Act of 1933, as amended, including by ordinary brokers’ transactions through the facilities of the New York Stock Exchange, to or through a market maker or directly on or through an electronic communications network, at market prices prevailing at the time of sale, at prices related to prevailing market prices or at negotiated prices, in block transactions, through forward purchases/sales, in any manner permitted by applicable law, or as otherwise agreed with the Agents or the Forward Purchasers and the Forward Sellers and described in the Prospectus Supplement. CMS Energy may at any time suspend solicitation and offers under the Agreement or terminate the Agreement.
The Shares will be offered pursuant to the Prospectus Supplement and CMS Energy’s automatic shelf registration statement on Form S-3 (File No. 333-270060) filed on February 27, 2023, with the SEC (the “Registration Statement”). This Current Report shall not constitute an offer to sell or the solicitation of an offer to buy nor shall there be any sale of these securities in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state.
The foregoing description of the Agreement does not purport to be complete and is qualified in its entirety by the provisions of the Agreement which is attached hereto as Exhibit 1.1 and incorporated by reference herein.
This Current Report on Form 8-K is being filed to file certain documents in connection with the Offering as exhibits to the Registration Statement.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit Index
| 5.1 | Opinion of Melissa M. Gleespen, Esq., Vice President, Chief Compliance Officer and Corporate Secretary of CMS Energy, dated December 7, 2023, regarding the legality of the Shares. |
| 23.1 | Consent of Melissa M. Gleespen, Esq. (included in Exhibit 5.1). |
| 104 | Cover Page Interactive Data File (the cover page XBRL tags are embedded in the Inline XBRL document). |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| CMS ENERGY CORPORATION | ||
| Dated: December 7, 2023 | By: | /s/ Rejji P. Hayes |
| Rejji P. Hayes | ||
| Executive Vice President and Chief Financial Officer | ||