þ | Annual Report Pursuant To Section 15(d) of the Securities Exchange Act of 1934 |
o | Transition Report Pursuant to Section 15(d) of the Securities Exchange Act of 1934 |
PAGE | ||||||||
1 | ||||||||
2 | ||||||||
Financial Statements for the Years Ended December 31, 2007 and 2006 |
||||||||
3 | ||||||||
4 | ||||||||
5-19 | ||||||||
20 | ||||||||
21 | ||||||||
23(a)Consent of Independent Registered Public Accounting Firm - Rehmann Robson, P.C, | ||||||||
23(b)Consent of Independent Registered Public Accounting Firm - Ernst & Young LLP |
/s/ Rehmann Robson, P.C. | ||||
REHMANN ROBSON, P.C. |
-1-
-2-
December 31 | ||||||||
2007 | 2006 | |||||||
ASSETS |
||||||||
Investments, at fair value |
||||||||
Stable Value
Fund |
||||||||
Guaranteed investment contracts |
$ | 14,022,107 | $ | 47,554,415 | ||||
Fidelity Managed Income Portfolio II |
186,148,825 | 134,714,049 | ||||||
PIMCO Total Return Fund |
21,359,261 | 9,258,456 | ||||||
Vanguard Inflation Protected Securities Fund |
3,889,323 | 1,149,420 | ||||||
Comerica Small Cap Index Fund |
8,201,516 | 5,652,796 | ||||||
Comerica Large Cap Growth Index Fund |
19,484,242 | 13,094,734 | ||||||
Comerica Large Cap Value Index Fund |
26,615,487 | 16,555,214 | ||||||
Comerica Midcap Index Fund |
8,858,026 | 4,869,100 | ||||||
Comerica
S&P 500 Index Fund |
149,160,444 | 17,834,514 | ||||||
Calamos Growth Fund |
92,052,286 | 61,620,930 | ||||||
Janus Mid Cap Value Fund |
35,176,096 | 18,754,982 | ||||||
Fidelity Dividend Growth Fund |
| 152,178,397 | ||||||
Fidelity Low Price Stock Fund |
12,996,706 | 13,043,556 | ||||||
Fidelity Diversified International Fund |
93,224,174 | 54,204,102 | ||||||
Fidelity Small Cap Stock Fund |
24,490,888 | 18,748,634 | ||||||
Fidelity Freedom Income Fund |
5,729,643 | 2,091,386 | ||||||
Fidelity Freedom 2000 Fund |
735,702 | 88,509 | ||||||
Fidelity Freedom 2005 Fund |
1,917,608 | 1,080,594 | ||||||
Fidelity Freedom 2010 Fund |
21,133,650 | 7,297,097 | ||||||
Fidelity Freedom 2015 Fund |
18,134,747 | 3,965,605 | ||||||
Fidelity Freedom 2020 Fund |
25,345,129 | 8,405,926 | ||||||
Fidelity Freedom 2025 Fund |
13,935,575 | 2,362,671 | ||||||
Fidelity Freedom 2030 Fund |
11,027,177 | 3,125,468 | ||||||
Fidelity Freedom 2035 Fund |
4,830,616 | 1,119,253 | ||||||
Fidelity Freedom 2040 Fund |
7,443,798 | 3,171,322 | ||||||
Fidelity Freedom 2045 Fund |
1,505,021 | 23,564 | ||||||
Fidelity Freedom 2050 Fund |
1,886,086 | 110,529 | ||||||
CMS Energy Corporation Common Stock |
| 181,767,829 | ||||||
Short-term investments |
23,995 | 588,682 | ||||||
Loans to participants |
26,007,749 | 24,053,569 | ||||||
Total investments, at fair value |
835,335,877 | 808,485,303 | ||||||
Other receivables |
13,281 | 433,270 | ||||||
Other liabilities |
(214,017 | ) | (62,933 | ) | ||||
Net assets available for benefits, at fair value |
835,135,141 | 808,855,640 | ||||||
Adjustment from fair value to contract value for fully benefit
responsive investment contracts |
1,401,619 | 1,455,574 | ||||||
Net assets available for benefits |
$ | 836,536,760 | $ | 810,311,214 | ||||
-3-
Year Ended December 31 | ||||||||
2007 | 2006 | |||||||
Additions to net assets attributed to |
||||||||
Net investment income |
||||||||
Net appreciation in aggregate fair value of investments |
$ | 48,663,111 | $ | 74,565,632 | ||||
Interest |
3,623,994 | 5,106,327 | ||||||
Dividends |
1,368,417 | 22,600 | ||||||
Total net investment income |
53,655,522 | 79,694,559 | ||||||
Contributions |
||||||||
Participants |
42,819,469 | 42,085,220 | ||||||
Employer |
17,467,899 | 16,767,342 | ||||||
Rollovers |
3,123,011 | 1,695,222 | ||||||
Total contributions |
63,410,379 | 60,547,784 | ||||||
ERISA lawsuit settlement (Note 5) |
20,049,761 | | ||||||
Total additions |
137,115,662 | 140,242,343 | ||||||
Deductions from net assets attributed to |
||||||||
Benefits paid to participants |
110,789,453 | 57,151,762 | ||||||
Administrative expenses |
100,663 | 181,653 | ||||||
Total deductions |
110,890,116 | 57,333,415 | ||||||
Net increase |
26,225,546 | 82,908,928 | ||||||
Net assets available for benefits |
||||||||
Beginning of year |
810,311,214 | 727,402,286 | ||||||
End of year |
$ | 836,536,760 | $ | 810,311,214 | ||||
-4-
1. | DESCRIPTION OF THE PLAN AND SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES | |
The following description of the Employees Savings Plan, Employee Stock Ownership Plan and Defined Company Contribution Plan of Consumers Energy Company (the Plan) provides only general information. Participants should refer to the Plan agreement for a more complete description of the Plans provisions. | ||
Description of the Plan |
-5-
-6-
Summary of Significant Accounting Policies |
-7-
-8-
-9-
-10-
2. | INVESTMENTS | |
Investments that represent 5 percent or more of the Plans net assets available for benefits are as follows at December 31: |
2007 | 2006 | |||||||
Investments at fair value as determined
by quoted market price |
||||||||
Mutual Funds |
||||||||
Comerica
S&P 500 Index Fund |
$ | 149,160,444 | $ | * | ||||
Fidelity Diversified International Fund |
93,224,174 | 54,204,102 | ||||||
Calamos Growth Fund |
92,052,286 | 61,620,930 | ||||||
Fidelity Dividend Growth Fund |
| 152,178,397 | ||||||
Fidelity Managed Income Portfolio II |
186,148,825 | 134,714,049 | ||||||
CMS Energy Corporation Common Stock |
| 181,767,829 |
* | Represents less than 5% of the Plans net assets available for benefits |
The Plans investments (including gains and losses on investments bought and sold, as well as held during the year) appreciated in value as follows for the years ended December 31: |
2007 | 2006 | |||||||
Mutual funds |
$ | 47,106,996 | $ | 50,619,821 | ||||
CMS Energy Corporation Common Stock |
1,556,115 | 23,945,811 | ||||||
Net appreciation in
aggregate fair value |
$ | 48,663,111 | $ | 74,565,632 | ||||
-11-
During 2007, the CMS Energy Corporation Common Stock Fund and the Fidelity Dividend Growth Fund were eliminated as participant investment options from the Plan. The Plan closed new investments to the two funds effective May 1, 2007. As of May 1, 2007, 9,222,335 shares of CMS Energy Common Stock and 4,339,014 units of the Fidelity Dividend Growth Fund were held by the Plan. Between May 1, 2007 and October 31, 2007, participants could elect to divest any holdings in such funds and reallocate the proceeds into any remaining fund choices. Effective November 1, 2007, any remaining holdings in the Fidelity Dividend Growth Fund were liquidated and reallocated into the Comerica S&P 500 Index Fund. Effective November 1, 2007, any remaining holdings in the CMS Energy Corporation Common Stock Fund were liquidated by the Trustee over a two-week period in an effort to prevent the sales from impacting the market value of the stock (all shares of CMS Energy Corporation common stock were sold by November 15, 2007). The proceeds were reallocated based on the participants election for the investment of the employee contributions at the time of such sale. | ||
3. | INVESTMENTS IN COMMON/COLLECTIVE TRUSTS | |
Stable Value Fund | ||
The Stable Value Fund consists of fully benefit-responsive investment contracts of GICs, synthetics and a commingled pool (MIP II). The GIC issuers are contractually obligated to repay the principal and a specified interest rate that is guaranteed to the Plan. The wrap contracts in synthetics and the commingled pool (MIP II) are designed to maintain the contract value of the fund. Wrap contracts accrue interest using a formula called the crediting rate. | ||
Wrap contracts use the crediting rate formula to convert market value changes in the covered
assets into income distributions in order to minimize the difference between the market and
contract value of the covered assets over time. Using the crediting rate formula, an
estimated future market value is calculated by compounding the funds current market value
at the funds current yield to maturity for a period equal to the funds duration. The
crediting rate is the discount rate that equates the estimated future market value with the
funds current contract value. Crediting rates are reset quarterly. The wrap contracts
provide a guarantee that the crediting rate will not fall below 0%. |
-12-
The crediting rate, and hence the funds return, may be affected by many factors, including purchases and redemptions by shareholders. The precise impact on the fund depends on whether the market value of the covered assets is higher or lower than the contract value of those assets. If the market value of the covered assets is higher than their contract value, the crediting rate will ordinarily be higher than the yield of the covered assets. Under these circumstances, cash from new investors will tend to lower the crediting rate and the funds return, and redemptions by existing shareholders will tend to increase the crediting rate and the funds return. | ||
If the market value of the covered assets is lower than their contract value, the crediting rate will ordinarily be lower than the yield of the covered assets. When market value is lower than contract value, the fund will have, for example, less than $10.00 in cash and bonds for every $10.00 in NAV. Under these circumstances, cash from new investors will tend to increase the market value attributed to the covered assets and to increase the crediting rate and the funds return. Redemptions by existing shareholders will have the opposite effect, and will tend to reduce the market value attributed to remaining covered assets and to reduce the crediting rate and the funds return. Generally, the market value of covered assets will tend to be higher than contract value after interest rates have fallen due to higher bond prices. Conversely, the market value of covered assets will tend to be lower than their contract value after interest rates have risen due to lower bond prices. | ||
If the fund experiences significant redemptions when the market value is below the contract value, the funds yield may be reduced significantly, to a level that is not competitive with other investment options. This may result in additional redemptions, which would tend to lower the crediting rate further. If redemptions continued, the funds yield could be reduced to zero. If redemptions continued thereafter, the fund might have insufficient assets to meet redemption requests, at which point the fund would require payments from the wrap issuer to pay further shareholder redemptions. | ||
The fund and the wrap contracts purchased by the fund are designed to pay all participant-initiated transactions at contract value. Participant-initiated transactions are those transactions allowed by the underlying defined contribution plan (typically this would include withdrawals for benefits, loans, or transfers to non-competing funds within the plan). However, the wrap contracts limit the ability of the fund to transact at contract value upon the occurrence of certain events. These events include: |
| The plans failure to qualify under Section 401(a) or Section 401(k) of the Internal Revenue Code. |
-13-
| The establishment of a defined contribution plan that competes with the plan for employee contributions. | ||
| Any substantive modification of the plan or the administration of the plan that is not consented to by the wrap issuer. | ||
| Complete or partial termination of the plan. | ||
| Any change in law, regulation or administrative ruling applicable to the plan that could have a material adverse effect on the funds cash flow. | ||
| Merger or consolidation of the plan with another plan, the transfer of plan assets to another plan, or the sale, spin-off or merger of a subsidiary or division of the plan sponsor. | ||
| Any communication given to participants by the plan sponsor or any other plan fiduciary that is designed to induce or influence participants not to invest in the fund or to transfer assets out of the fund. | ||
| Exclusion of a group of previously eligible employees from eligibility of the plan. | ||
| Any early retirement program, group termination, group layoff, facility closing, or similar program. | ||
| Any transfer of assets from the fund directly to a competing option. |
At this time, the occurrence of any of these events is not probable. | ||
A wrap issuer may terminate a wrap contract at any time. In the event that the market value of the funds covered assets is below their contract value at the time of such termination, the investment manager may elect to keep the wrap contract in place until such time as the market value of the funds covered assets is equal to their contract value. A wrap issuer may also terminate a wrap contract if the investment managers investment management authority over the fund is limited or terminated as well as if all of the terms of the wrap contract fail to be met. In the event that the market value of the funds covered assets is below their contract value at the time of such termination, the terminating wrap provider would not be required to make a payment to the fund. |
-14-
The adjustments from fair value to contract value for fully benefit-responsive investment contracts (Stable Value Fund) are $1,401,619 and $1,455,574 as of December 31, 2007 and 2006, respectively. The details of the adjustments at those dates are as follows: |
December 31, 2007 | December 31, 2006 | |||||||||||||||||||||||
Contract | Fair | Adjustment | Contract | Fair | Adjustment | |||||||||||||||||||
Value | Value | (CV FV) | Value | Value | (CV FV) | |||||||||||||||||||
Investment contracts: |
||||||||||||||||||||||||
GICs: |
||||||||||||||||||||||||
Prudential 5.70%
due 11/05/07 |
$ | | $ | | $ | | $ | 20,035,900 | $ | 20,091,731 | $ | (55,831 | ) | |||||||||||
Principal 6.28%
due 05/14/07 |
| | | 14,109,304 | 14,150,868 | (41,564 | ) | |||||||||||||||||
Principal 5.85%
due 01/30/08 |
14,017,060 | 14,022,107 | (5,047 | ) | 13,242,381 | 13,311,816 | (69,435 | ) | ||||||||||||||||
Total investment
contracts |
14,017,060 | 14,022,107 | (5,047 | ) | 47,387,585 | 47,554,415 | (166,830 | ) | ||||||||||||||||
Pool MIP II
Class 3 |
187,555,491 | 186,148,825 | 1,406,666 | 136,336,453 | 134,714,049 | 1,622,404 | ||||||||||||||||||
Total of Stable
Value Fund |
$ | 201,572,551 | $ | 200,170,932 | $ | 1,401,619 | $ | 183,724,038 | $ | 182,268,464 | $ | 1,455,574 | ||||||||||||
2007 | 2006 | |||||||
Based on market value spot yield
|
4.76 | % | 5.20 | % | ||||
Based on contract value spot yield
|
4.79 | % | 4.83 | % |
4. | RECONCILIATION OF FINANCIAL STATEMENTS TO FEDERAL IRS FORM 5500 | |
The following is a reconciliation of net assets available for benefits as reported in the plan financial statements to the Form 5500: |
-15-
December 31, | ||||||||
2007 | 2006 | |||||||
Net assets available for plan benefits as
reported in the plan financial statements |
$ | 836,536,760 | $ | 810,311,214 | ||||
Adjustments from contract value to fair
value for certain fully benefit-responsive
investment contracts (MIP II) |
(1,406,666 | ) | (1,622,404 | ) | ||||
Net assets available for plan benefits as
reported in the Form 5500 |
$ | 835,130,094 | $ | 808,688,810 | ||||
The following is a reconciliation of net investment gains from investments: |
December 31, | ||||||||
2007 | 2006 | |||||||
Interest and dividends from investments |
$ | 4,992,411 | $ | 5,128,927 | ||||
Net realized/unrealized appreciation from
investment accounts |
48,663,111 | 74,565,632 | ||||||
Net investment gain from investments
as reported in the financial statements |
53,655,522 | 79,694,559 | ||||||
Adjustments from contract value to fair value
for certain fully benefit-responsive
investment contracts (MIP II) |
215,738 | 16,828 | ||||||
Net investment gain from investments as
reported in the Form 5500 |
$ | 53,871,260 | $ | 79,711,387 | ||||
-16-
5. | LAWSUIT SETTLEMENTS | |
ERISA Lawsuit | ||
The Company was a named defendant, along with Consumers, by CMS Marketing, Services and Trading Company (MST) and certain named and unnamed officers and directors, in two lawsuits, filed in July 2002 in the U.S. District Court for the Eastern District of Michigan, brought as purported class actions on behalf of participants and beneficiaries of the Plan. Plaintiffs alleged breaches of fiduciary duties under ERISA and sought restitution on behalf of the Plan with respect to a decline in value of the shares of the Companys common stock held in the Plan, as well as other equitable relief and legal fees. On March 1, 2006, the Company and Consumers reached an agreement, subject to court and independent fiduciary approval, to settle the lawsuits. The settlement agreement required a $28 million cash payment by the Companys primary insurer that was used to pay Plan participants and beneficiaries for alleged losses, as well as legal fees and expenses. In addition, the Company agreed to certain other steps regarding administration of the Plan. A hearing on the final approval of the settlement was held on June 15, 2006. On June 27, 2006, the Judge entered the Order and Final Judgment approving the proposed settlement with minor modifications. The settlement proceeds, net of attorneys fees and expenses, were disbursed to the Plan for distribution by the Plans trustee in accordance with the Amended Plan of Allocation. On April 13, 2007, net proceeds of $20,049,761 were allocated to participant accounts. After this litigation, a decision was made to remove the Companys common stock as an investment option in the Plan. | ||
Securities Class Action Lawsuits | ||
Beginning in May 2002, a number of complaints were filed against CMS Energy Corporation (CMS Energy), Consumers Energy Company (Consumers) and certain officers and directors of CMS Energy and its affiliates in the United States District Court for the Eastern District of Michigan. The cases were consolidated into a single lawsuit (the Shareholder Action), based on allegations that the defendants violated United States securities laws and regulations by making allegedly false and misleading statements about CMS Energys business and financial condition, particularly with respect to revenues and expenses recorded in connection with round-trip trading by CMS MST. On January 3, 2007, CMS Energy and other parties entered into a Memorandum of Understanding (the MOU), subject to court approval, regarding settlement of the class action lawsuits. The settlement was approved by a special committee of independent directors and by the full board of directors of CMS Energy. The litigation was settled for a total of $200 million, including the cost of administering the settlement and any |
-17-
attorney fees the court awards. Attorney fees and administrative costs will be deducted to arrive at a net settlement amount that will ultimately be distributed to shareholders with allowed claims. The settlement was approved by the Court in an Order and Final Judgment entered on September 6, 2007. Under the settlement, the Plan was allowed to submit a Proof of Claim on behalf of the Plan for (i) the Plans settlement class period (defined as October 25, 2000 through March 31, 2003) transactions or (ii) for Plan participants settlement class period transactions made through the Plan in common stock, of Plan participants who, had such Plan transactions been made directly by the participant, would otherwise qualify as settlement members. Under the plan of allocation proposed by class counsel, and approved by the Court, the recognized claim amount on any claim submitted by the Plan is to be reduced by 20% as an offset in recognition of the $28 million settlement in the In re CMS Energy ERISA Litigation, Case No. 02-72834. The Plan submitted a Proof of Claim as allowed under the settlement. Except for this 20% reduction, the plan will share with other non-plan shareholders in the net distributions that will be approved by the Court. No distributions have yet been received by the Plan or any other claimants in this class action proceeding, the amount of the future distributions has not yet been determined, and the timing of those distributions is uncertain. Accordingly, no amounts related to this settlement have been recognized in the Plans 2007 financial statements. | ||
6. | INCOME TAX STATUS | |
The Internal Revenue Service has determined and informed the Company by a letter dated February 29, 2008, that the Plan and related trust are designed in accordance with applicable sections of the Internal Revenue Code (IRC). The Plan administrator believes the Plan is currently designed and being operated in compliance with the applicable requirements of the IRC. | ||
7. | PLAN TERMINATION | |
Although it has not expressed any intent to do so, the Company has the right under the Plan to discontinue its contributions at any time and to terminate the Plan subject to the provisions of ERISA. In the event of plan termination, the value of the participant accounts will be determined as of the effective date of the termination and be distributed as provided by the Plan. |
-18-
8. | RISKS AND UNCERTAINTIES | |
The Plan provides for various investment options in mutual funds, guaranteed investment contracts, and a stable value fund. Investment securities are exposed to various risks, such as interest rate, market and credit risks. Due to the level of risk associated with certain investment securities, it is at least reasonably possible that changes in the values of investment securities will occur in the near term and that such changes could materially affect participants accounts and the amounts reported in the accompanying Statement of Net Assets Available for Benefits as of December 31, 2007. | ||
9. | RELATED-PARTY TRANSACTIONS | |
Dividend income earned on CMS Energy Corporation (the Plan Sponsor) Common Stock was $1,368,417 for the year ended December 31, 2007. There was no such dividend income for the year ended December 31, 2006. | ||
Fidelity charges Plan participants loan initiation and brokerage fees. Fidelity is the trustee as defined by the Plan and, therefore, the transactions qualify as party-in-interest. Fees paid by the Plan participants for such services from participants respective Plan assets amounted to $100,663 and $181,653 for 2007 and 2006, respectively. |
-19-
Description of Investment | Contract | |||||||||||
Identity of Issue, | Including Maturity Date, | or | ||||||||||
Borrower, Lessor, or | Rate of Interest, Collateral, | Current | ||||||||||
Similar Party | Par or Maturity Value | Value | ||||||||||
Principal Mutual Life Insurance Company |
Guaranteed investment contract | |||||||||||
5.85% Matures 01/30/2008 | $ | 14,017,060 | ||||||||||
* | Fidelity Investments |
Fidelity Managed Income Portfolio II | 187,555,491 | |||||||||
Fidelity Low Price Stock Fund | 12,996,706 | |||||||||||
Fidelity Diversified International Fund | 93,224,174 | |||||||||||
Fidelity Small Cap Stock Fund | 24,490,888 | |||||||||||
Fidelity Freedom Income Fund | 5,729,643 | |||||||||||
Fidelity Freedom 2000 Fund | 735,702 | |||||||||||
Fidelity Freedom 2005 Fund | 1,917,608 | |||||||||||
Fidelity Freedom 2010 Fund | 21,133,650 | |||||||||||
Fidelity Freedom 2015 Fund | 18,134,747 | |||||||||||
Fidelity Freedom 2020 Fund | 25,345,129 | |||||||||||
Fidelity Freedom 2025 Fund | 13,935,575 | |||||||||||
Fidelity Freedom 2030 Fund | 11,027,177 | |||||||||||
Fidelity Freedom 2035 Fund | 4,830,616 | |||||||||||
Fidelity Freedom 2040 Fund | 7,443,798 | |||||||||||
Fidelity Freedom 2045 Fund | 1,505,021 | |||||||||||
Fidelity Freedom 2050 Fund | 1,886,086 | |||||||||||
Short-term investments | 23,995 | |||||||||||
Comerica Bank, N.A. |
Comerica Small Cap Index Fund | 8,201,516 | ||||||||||
Comerica Large Cap Growth Index Fund | 19,484,242 | |||||||||||
Comerica Large Cap Value Index Fund | 26,615,487 | |||||||||||
Comerica Midcap Index Fund | 8,858,026 | |||||||||||
Comerica S&P 500 Index Fund | 149,160,444 | |||||||||||
Calamos Asset Management, Inc. |
Calamos Growth Fund | 92,052,286 | ||||||||||
PIMCO |
PIMCO Total Return Fund | 21,359,261 | ||||||||||
Berger Financial Group, LLC |
Janus Mid Cap Value Fund | 35,176,096 | ||||||||||
Vanguard |
Vanguard Inflation Protected Securities Fund | 3,889,323 | ||||||||||
* | Participant Loans |
Interest
rate range of 3.00% to 8.75% with maturity dates of 1 to 15 years,
collateral - participant account balances |
26,007,749 | |||||||||
Total investments |
$ | 836,737,496 | ||||||||||
* | Party-in-interest. |
-20-
(h) | ||||||||||||||||||||||
(b) Description of Asset | (c) | (d) | (g) | Current Value | (i) | |||||||||||||||||
(Including Interest Rate and | Purchase | Selling | Cost of | of Asset on | Net Gain | |||||||||||||||||
(a) Identity of Party Involved | Maturity in Case of a Loan) | Price | Price | Asset | Transaction Date | or Loss | ||||||||||||||||
c) | A series of transactions with
respect to securities of the
same issue which amount in
the aggregate to more than
5% of the current value
of plan assets: |
|||||||||||||||||||||
* CMS Energy Corporation
|
Common Stock Sales | $ | $ | 114,176,684 | $ | 123,512,147 | $ | 114,176,684 | $ | (9,335,463 | ) |
* | Party in interest |
-21-