UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
DATE OF REPORT (DATE OF EARLIEST EVENT REPORTED) OCTOBER 1, 2004
COMMISSION REGISTRANT; STATE OF INCORPORATION; IRS EMPLOYER
FILE NUMBER ADDRESS; AND TELEPHONE NUMBER IDENTIFICATION NO.
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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
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:
[ ] Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17
CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
ITEM 5.02. DEPARTURE OF DIRECTORS OR PRINCIPAL OFFICERS; ELECTION OF
DIRECTORS; APPOINTMENT OF PRINCIPAL OFFICERS.
Effective October 1, 2004 and as previously reported in a Form 8-K filed on
September 1, 2004, the Boards of Directors of CMS Energy Corporation ("CMS
Energy") and its principal subsidiary, Consumers Energy Company ("Consumers")
elected David W. Joos to the position of chief executive officer for CMS Energy
and Consumers. Mr. Joos will continue in his position of president of CMS
Energy, but has relinquished that position at Consumers.
Ken Whipple will continue in his role as chairman of CMS Energy and Consumers.
In connection with Mr. Whipple's relinquishment of his prior positions as chief
executive officer of CMS Energy and Consumers, his employment as an executive
officer of both companies terminated effective September 30, 2004. Mr. Whipple's
prior compensation and awards will be paid out to him in accordance with the
terms of his First Amended and Restated Employment Agreement effective as of
September 1, 2003, as previously filed as an exhibit to a Form 8-K filed on
October 24, 2003.
Also effective October 1, 2004, the Board of Directors of Consumers elected John
G. Russell to the position of president and chief operating officer. Mr. Russell
is 46 years old. He joined Consumers in 1986 and has received a succession of
increasingly responsible management positions at the companies. During the past
five years, Mr. Russell has held the following positions at Consumers:
- Executive Vice President, President and Chief Executive Officer - Electric 2001 - 9/30/2004
- Senior Vice President 2000 - 2001
- Vice President 1999 - 2000
Mr. Russell previously had entered in to an executive severance agreement with
Consumers in the Tier I form disclosed as part of Exhibit (10)(b) to CMS
Energy's and Consumers' Forms 10-Q for the quarter ended June 30, 2004. The Tier
I agreement applicable to senior officers, which has an initial three-year term
subject to further extension, provides for change-in-control severance benefits
when there is a change in control of the company and general severance benefits
for senior officers outside of such a change in control.
There are no family relationships between Mr. Russell and any other executive
officer or director of CMS Energy or Consumers, nor does Mr. Russell have a
direct or indirect material interest in any transaction or series of
transactions to which CMS Energy or Consumers or any of their subsidiaries are a
party.
ITEM 5.03. AMENDMENTS TO ARTICLES OF INCORPORATION OR BYLAWS; CHANGE IN FISCAL
YEAR.
Effective October 1, 2004, CMS Energy and Consumers have adopted changes to
their respective bylaws. CMS Energy amended its bylaws to separate the roles of
chairman and chief executive officer (Article X, Sections 3 and 4) and to
reflect the New York Stock Exchange requirement that officer compensation be
fixed by a committee of independent directors (Article VIII, Section 5).
Consumers amended its bylaws for the aforementioned reasons (Article X, Sections
3 and 4 and Article VIII, Section 5) as well as redefining the position of
president, such that the president shall be the chief operating officer of the
company (Article X, Section 5). CMS Energy's and Consumers' respective bylaws
are attached as exhibits hereto.
ITEM 9.01. FINANCIAL STATEMENTS AND EXHIBITS.
(c) EXHIBITS.
(3)(a) CMS Energy Corporation Bylaws, amended and restated as of October 1,
2004
(3)(b) Consumers Energy Company Bylaws, amended and restated as of October 1,
2004
This Form 8-K contains "forward-looking statements" as defined in Rule 3b-6 of
the Securities Exchange Act of 1934, as amended, Rule 175 of the Securities Act
of 1933, as amended, and relevant legal decisions. The forward-looking
statements are subject to risks and uncertainties. They should be read in
conjunction with "FORWARD-LOOKING STATEMENTS AND RISK FACTORS" found in the
MANAGEMENT'S DISCUSSION AND ANALYSIS sections of CMS Energy's Form 10-K/A for
the Fiscal Year Ended December 31, 2003 and Consumers' Form 10-K for the Fiscal
Year Ended December 31, 2003 (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: October 6, 2004
By: /s/ S. Kinnie Smith, Jr.
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S. Kinnie Smith, Jr.
Vice Chairman of the Board and
General Counsel
CONSUMERS ENERGY COMPANY
Dated: October 6, 2004
By: /s/ S. Kinnie Smith, Jr.
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S. Kinnie Smith, Jr.
Vice Chairman of the Board
8-K EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
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EX-3a CMS Energy Corporation Bylaws
EX-3b Consumers Energy Company Bylaws