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UNITED STATES SECURITIES AND EXCHANGE COMMISSION

Washington, D.C.  20549

FORM 10-Q

x

QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d)

 

 

OF THE SECURITIES EXCHANGE ACT OF 1934

 

 

For the quarterly period ended March 31, 2014

 

 

OR

 

 

 

 

o

TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d)

 

 

OF THE SECURITIES EXCHANGE ACT OF 1934

 

 

For the transition period from_____to_____

 

 

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

 

 

Indicate by check mark whether the Registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days.

CMS Energy Corporation :  Yes x      No o    Consumers Energy Company :  Yes x      No o

Indicate by check mark whether the Registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data file required to be submitted and posted pursuant to Rule 405 of Regulation S-T (§232.405 of this chapter) during the preceding 12 months (or for such shorter period that the Registrant was required to submit and post such files).

CMS Energy Corporation :  Yes x      No o    Consumers Energy Company :  Yes x      No o

Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company.  See the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

CMS Energy Corporation :

Large accelerated filer x    Accelerated filer o    Non-Accelerated filer o    Smaller reporting company o

(Do not check if a smaller reporting company)

Consumers Energy Company :

Large accelerated filer o   Accelerated filer o    Non-Accelerated filer x    Smaller reporting company o

(Do not check if a smaller reporting company)

Indicate by check mark whether the Registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).

CMS Energy Corporation :  Yes o     No x    Consumers Energy Company :  Yes o     No x

Indicate the number of shares outstanding of each of the issuer’s classes of common stock at April 4, 2014:

CMS Energy Corporation:

CMS Energy Common Stock, $0.01 par value

 

 

(including 1,091,320 shares owned by Consumers Energy Company)

 

269,490,029

Consumers Energy Company:

Consumers Common Stock, $10 par value, privately held by CMS Energy Corporation

 

84,108,789

 



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CMS Energy Corporation

Consumers Energy Company

 

Quarterly Reports on Form 10-Q to the Securities and Exchange Commission for the Period Ended

March 31, 2014

 

TABLE O F CONTENTS

 

 

Page

Glossary

3

Filing Format

8

Forward-Looking Statements and Information

8

 

 

PART I. Financial Information

 

 

 

 

Item 1.

Consolidated Financial Statements (Unaudited)

 

 

CMS Energy Corporation

32

 

Consumers Energy Company

40

 

Notes to the Unaudited Consolidated Financial Statements

47

Item 2.

Management’s Discussion and Analysis of Financial Condition and Results of Operations

11

Item 3.

Quantitative and Qualitative Disclosures About Market Risk

65

Item 4.

Controls and Procedures

65

 

 

 

PART II. Other Information

 

 

 

 

Item 1.

Legal Proceedings

66

Item 1A.

Risk Factors

66

Item 2.

Unregistered Sales of Equity Securities and Use of Proceeds

67

Item 3.

Defaults Upon Senior Securities

67

Item 4.

Mine Safety Disclosures

67

Item 5.

Other Information

67

Item 6.

Exhibits

68

Signatures

69

 

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GLOSSARY

 

Certain terms used in the text and financial statements are defined below.

 

2008 Energy Law

 

Comprehensive energy reform package enacted in Michigan in 2008

 

 

 

2013 Form 10-K

 

Each of CMS Energy’s and Consumers’ Annual Report on Form 10-K for the year ended December 31, 2013

 

 

 

ABATE

 

Association of Businesses Advocating Tariff Equity

 

 

 

Bay Harbor

 

A residential/commercial real estate area located near Petoskey, Michigan, in which CMS Energy sold its interest in 2002

 

 

 

bcf

 

Billion cubic feet

 

 

 

Big Rock

 

Big Rock Point nuclear power plant, formerly owned by Consumers

 

 

 

CAIR

 

The Clean Air Interstate Rule

 

 

 

Cantera Gas Company

 

Cantera Gas Company LLC, a non-affiliated company, formerly known as CMS Field Services

 

 

 

Cantera Natural Gas, Inc.

 

Cantera Natural Gas, Inc., a non-affiliated company that purchased CMS Field Services

 

 

 

CCR

 

Coal combustion residual

 

 

 

CEO

 

Chief Executive Officer

 

 

 

CERCLA

 

Comprehensive Environmental Response, Compensation, and Liability Act of 1980

 

 

 

CFO

 

Chief Financial Officer

 

 

 

Clean Air Act

 

Federal Clean Air Act of 1963, as amended

 

 

 

Clean Water Act

 

Federal Water Pollution Control Act of 1972, as amended

 

 

 

CMS Capital

 

CMS Capital, L.L.C., a wholly owned subsidiary of CMS Energy

 

 

 

CMS Energy

 

CMS Energy Corporation, the parent of Consumers and CMS Enterprises

 

 

 

CMS Enterprises

 

CMS Enterprises Company, a wholly owned subsidiary of CMS Energy

 

 

 

CMS ERM

 

CMS Energy Resource Management Company, formerly known as CMS MST, a wholly owned subsidiary of CMS Enterprises

 

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CMS Field Services

 

CMS Field Services, Inc., a former wholly owned subsidiary of CMS Gas Transmission

 

 

 

CMS Gas Transmission

 

CMS Gas Transmission Company, a wholly owned subsidiary of CMS Enterprises

 

 

 

CMS Land

 

CMS Land Company, a wholly owned subsidiary of CMS Capital

 

 

 

CMS MST

 

CMS Marketing, Services and Trading Company, a wholly owned subsidiary of CMS Enterprises, whose name was changed to CMS ERM in 2004

 

 

 

Consumers

 

Consumers Energy Company, a wholly owned subsidiary of CMS Energy

 

 

 

CSAPR

 

The Cross-State Air Pollution Rule

 

 

 

DB SERP

 

Defined Benefit Supplemental Executive Retirement Plan

 

 

 

Dodd-Frank Act

 

Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010

 

 

 

DOE

 

U.S. Department of Energy

 

 

 

DOJ

 

U.S. Department of Justice

 

 

 

DTE Electric

 

DTE Electric Company, a non-affiliated company

 

 

 

EBITDA

 

Earnings before interest, taxes, depreciation, and amortization

 

 

 

EnerBank

 

EnerBank USA, a wholly owned subsidiary of CMS Capital

 

 

 

Entergy

 

Entergy Corporation, a non-affiliated company

 

 

 

Environmental Mitigation Projects

 

Environmentally beneficial projects that a party agrees to undertake as part of the settlement of an enforcement action, but which the party is not otherwise legally required to perform

 

 

 

EPA

 

U.S. Environmental Protection Agency

 

 

 

EPS

 

Earnings per share

 

 

 

Exchange Act

 

Securities Exchange Act of 1934, as amended

 

 

 

FDIC

 

Federal Deposit Insurance Corporation

 

 

 

FERC

 

The Federal Energy Regulatory Commission

 

 

 

fine particulate matter

 

Particulate matter that is 2.5 microns or less in diameter

 

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FLI Liquidating Trust

 

Trust formed in Missouri bankruptcy court to accomplish the liquidation of Farmland Industries, Inc., a non-affiliated entity

 

 

 

FMB

 

First mortgage bond

 

 

 

FOV

 

Finding of Violation

 

 

 

GAAP

 

U.S. Generally Accepted Accounting Principles

 

 

 

GCR

 

Gas cost recovery

 

 

 

Health Care Acts

 

Comprehensive health care reform enacted in March 2010, comprising the Patient Protection and Affordable Care Act and the related Health Care and Education Reconciliation Act

 

 

 

kWh

 

Kilowatt-hour, a unit of energy equal to one thousand watt-hours

 

 

 

Ludington

 

Ludington pumped-storage plant, jointly owned by Consumers and DTE Electric

 

 

 

MACT

 

Maximum Achievable Control Technology, which is the emission control that is achieved in practice by the best-controlled similar source

 

 

 

MATS

 

Mercury and Air Toxics Standards, which limit mercury, acid gases, and other toxic pollution from coal-fueled and oil-fueled power plants

 

 

 

MD&A

 

Management’s Discussion and Analysis of Financial Condition and Results of Operations

 

 

 

MDEQ

 

Michigan Department of Environmental Quality

 

 

 

MDL

 

A pending multi-district litigation case in Nevada arising out of several consolidated cases

 

 

 

MGP

 

Manufactured gas plant

 

 

 

MISO

 

The Midcontinent Independent System Operator, Inc.

 

 

 

mothball

 

To place a generating unit into a state of extended reserve shutdown in which the unit is inactive and unavailable for service for a specified period, during which the unit can be brought back into service after receiving appropriate notification and completing any necessary maintenance or other work; generation owners in MISO must request approval to mothball a unit, and MISO then evaluates the request for reliability impacts

 

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MPSC

 

Michigan Public Service Commission

 

 

 

MW

 

Megawatt, a unit of power equal to one million watts

 

 

 

NAV

 

Net asset value

 

 

 

NERC

 

The North American Electric Reliability Corporation, a non-affiliated company responsible for developing and enforcing reliability standards, monitoring the bulk power system, and educating and certifying industry personnel

 

 

 

NOV

 

Notice of Violation

 

 

 

NPDES

 

National Pollutant Discharge Elimination System, a permit system for regulating point sources of pollution under the Clean Water Act

 

 

 

NREPA

 

Part 201 of the Michigan Natural Resources and Environmental Protection Act, a statute that covers environmental activities including remediation

 

 

 

NSR

 

New Source Review, a construction-permitting program under the Clean Air Act

 

 

 

NYMEX

 

The New York Mercantile Exchange

 

 

 

OPEB

 

Other Post-Employment Benefits

 

 

 

OPEB Plan

 

Defined benefit postretirement health-care and life insurance plans of CMS Energy, Consumers, and Panhandle

 

 

 

Palisades

 

Palisades nuclear power plant, sold by Consumers to Entergy in 2007

 

 

 

Panhandle

 

Panhandle Eastern Pipe Line Company, a former wholly owned subsidiary of CMS Gas Transmission

 

 

 

PCB

 

Polychlorinated biphenyl

 

 

 

PSCR

 

Power supply cost recovery

 

 

 

PSD

 

Prevention of Significant Deterioration

 

 

 

REC

 

Renewable energy credit established under the 2008 Energy Law

 

 

 

ReliabilityFirst Corporation

 

ReliabilityFirst Corporation, a non-affiliated company responsible for the preservation and enhancement of bulk power system reliability and security

 

 

 

Renewable Operating Permit

 

Michigan’s Title V permitting program under the Clean Air Act

 

 

 

Resource Conservation and Recovery Act

 

Federal Resource Conservation and Recovery Act of 1976

 

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RMRR

 

Routine maintenance, repair, and replacement

 

 

 

ROA

 

Retail Open Access, which allows electric generation customers to choose alternative electric suppliers pursuant to a Michigan statute enacted in 2000

 

 

 

SEC

 

U.S. Securities and Exchange Commission

 

 

 

Securitization

 

A financing method authorized by statute and approved by the MPSC which allows a utility to sell its right to receive a portion of the rate payments received from its customers for the repayment of securitization bonds issued by a special-purpose entity affiliated with such utility

 

 

 

Sherman Act

 

Sherman Antitrust Act of 1890

 

 

 

Smart Energy

 

Consumers’ Smart Energy grid modernization project, which includes the installation of smart meters that transmit and receive data, a two-way communications network, and modifications to Consumers’ existing information technology system to manage the data and enable changes to key business processes

 

 

 

Title V

 

A federal program under the Clean Air Act designed to standardize air quality permits and the permitting process for major sources of emissions across the U.S.

 

 

 

Trunkline

 

Trunkline Gas Company, LLC, a non-affiliated company and wholly owned subsidiary of Panhandle

 

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FILING FORMAT

 

This combined Form 10-Q is separately filed by CMS Energy and Consumers.  Information in this combined Form 10-Q relating to each individual registrant is filed by such registrant on its own behalf.  Consumers makes no representation regarding information relating to any other companies affiliated with CMS Energy other than its own subsidiaries.  None of CMS Energy, CMS Enterprises, nor any of CMS Energy’s other subsidiaries (other than Consumers) has any obligation in respect of Consumers’ debt securities and holders of such debt securities should not consider the financial resources or results of operations of CMS Energy, CMS Enterprises, nor any of CMS Energy’s other subsidiaries (other than Consumers and its own subsidiaries (in relevant circumstances)) in making a decision with respect to Consumers’ debt securities.  Similarly, none of Consumers nor any other subsidiary of CMS Energy has any obligation in respect of debt securities of CMS Energy.

 

This report should be read in its entirety.  No one section of this report deals with all aspects of the subject matter of this report.  This report should be read in conjunction with the consolidated financial statements and related notes and with MD&A included in the 2013 Form 10-K.

 

FORWARD-LOOKING STATEMENTS AND INFORMATION

 

This Form 10-Q and other written and oral statements that CMS Energy and Consumers make may contain forward-looking statements as defined by the Private Securities Litigation Reform Act of 1995.  The use of “might,” “may,” “could,” “should,” “anticipates,” “believes,” “estimates,” “expects,” “intends,” “plans,” “projects,” “forecasts,” “predicts,” “assumes,” and other similar words is intended to identify forward-looking statements that involve risk and uncertainty.  This discussion of potential risks and uncertainties is designed to highlight important factors that may impact CMS Energy’s and Consumers’ businesses and financial outlook.  CMS Energy and Consumers have no obligation to update or revise forward-looking statements regardless of whether new information, future events, or any other factors affect the information contained in the statements.  These forward-looking statements are subject to various factors that could cause CMS Energy’s and Consumers’ actual results to differ materially from the results anticipated in these statements.  These factors include, but are not limited to, the following, all of which are potentially significant:

 

·                  the impact of new regulation by the MPSC or FERC and other applicable governmental proceedings and regulations, including any associated impact on electric or gas rates or rate structures;

 

·                  potentially adverse regulatory treatment or failure to receive timely regulatory orders affecting Consumers that are or could come before the MPSC, FERC, or other governmental authorities;

 

·                  changes in the performance of or regulations applicable to MISO, Michigan Electric Transmission Company, pipelines, railroads, or other service providers that CMS Energy, Consumers, or any of their affiliates rely on to serve their customers;

 

·                  the adoption of federal or state laws or regulations or changes in applicable laws, rules, regulations, principles, or practices, or in their interpretation, including those related to energy policy and ROA, the environment, regulation or deregulation, health care reforms (including the Health Care Acts), taxes, accounting matters, and other business issues that could have an impact on CMS Energy’s or Consumers’ businesses or financial results, including laws or regulations regarding climate change and air emissions and potential effects of the Dodd-Frank Act and related regulations on CMS Energy, Consumers, or any of their affiliates;

 

·                  potentially adverse regulatory or legal interpretations or decisions regarding environmental matters, or delayed regulatory treatment or permitting decisions that are or could come before the

 

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MDEQ, EPA, and/or U.S. Army Corps of Engineers, and potential environmental remediation costs associated with these interpretations or decisions, including those that may affect Bay Harbor or Consumers’ RMRR classification under NSR regulations;

 

·                  changes in energy markets, including availability and price of electric capacity and the timing and extent of changes in commodity prices and availability of coal, natural gas, natural gas liquids, electricity, oil, and certain related products;

 

·                  the price of CMS Energy common stock, the credit ratings of CMS Energy and Consumers, capital and financial market conditions, and the effect of these market conditions on CMS Energy’s and Consumers’ interest costs and access to the capital markets, including availability of financing to CMS Energy, Consumers, or any of their affiliates;

 

·                  the investment performance of the assets of CMS Energy’s and Consumers’ pension and benefit plans and the discount rates used in calculating the plans’ obligations, and the resulting impact on future funding requirements;

 

·                  the impact of the economy, particularly in Michigan, and potential future volatility in the financial and credit markets on CMS Energy’s, Consumers’, or any of their affiliates’ revenues, ability to collect accounts receivable from customers, or cost and availability of capital;

 

·                  changes in the economic and financial viability of CMS Energy’s and Consumers’ suppliers, customers, and other counterparties and the continued ability of these third parties, including third parties in bankruptcy, to meet their obligations to CMS Energy and Consumers;

 

·                  population changes in the geographic areas where CMS Energy and Consumers conduct business;

 

·                  national, regional, and local economic, competitive, and regulatory policies, conditions, and developments, including municipal bankruptcy filings;

 

·                  loss of customer demand for electric generation supply to alternative energy suppliers;

 

·                  federal regulation of electric sales and transmission of electricity, including periodic re-examination by federal regulators of CMS Energy’s and Consumers’ market-based sales authorizations in wholesale power markets without price restrictions;

 

·                  the impact of credit markets, economic conditions, and any new banking regulations on EnerBank;

 

·                  the availability, cost, coverage, and terms of insurance, the stability of insurance providers, and the ability of Consumers to recover the costs of any insurance from customers;

 

·                  the effectiveness of CMS Energy’s and Consumers’ risk management policies, procedures, and strategies, including strategies to hedge risk related to future prices of electricity, natural gas, and other energy-related commodities;

 

·                  factors affecting development of electric generation projects and gas and electric distribution infrastructure replacement and expansion projects, including those related to project site identification, construction material pricing, availability of qualified construction personnel, permitting, and government approvals;

 

·                  factors affecting operations, such as costs and availability of personnel, equipment, and materials, unusual weather conditions, catastrophic weather-related damage, scheduled or unscheduled

 

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equipment outages, maintenance or repairs, environmental incidents, equipment failures, and electric transmission and distribution or gas pipeline system constraints;

 

·                  potential disruption to, interruption of, or other impacts on facilities, utility infrastructure, or operations due to accidents, explosions, physical disasters, war, or terrorism, and the ability to obtain or maintain insurance coverage for these events;

 

·                  changes or disruption in fuel supply, including but not limited to rail or vessel transport of coal and pipeline transport of natural gas;

 

·                  potential costs, lost revenues, or other consequences resulting from misappropriation of assets or sensitive information, corruption of data, or operational disruption in connection with a cyber attack or other cyber incident;

 

·                  technological developments in energy production, storage, delivery, usage, and metering, including Smart Energy and the success of its implementation;

 

·                  the impact of CMS Energy’s and Consumers’ integrated business software system and its operation on their activities, including utility customer billing and collections;

 

·                  adverse consequences resulting from any past or future assertion of indemnity or warranty claims associated with assets and businesses previously owned by CMS Energy or Consumers, including claims resulting from attempts by foreign or domestic governments to assess taxes on past operations or transactions;

 

·                  the outcome, cost, and other effects of any legal or administrative proceedings, settlements, investigations, or claims;

 

·                  the impact of operational incidents, violations of corporate compliance policies, regulatory violations, and other events on CMS Energy’s and Consumers’ reputations;

 

·                  restrictions imposed by various financing arrangements and regulatory requirements on the ability of Consumers and other subsidiaries of CMS Energy to transfer funds to CMS Energy in the form of cash dividends, loans, or advances;

 

·                  earnings volatility resulting from the application of fair value accounting to certain energy commodity contracts or interest rate contracts;

 

·                  changes in financial or regulatory accounting principles or policies, including a possible future requirement to comply with International Financial Reporting Standards, which differ from GAAP in various ways, including the present lack of special accounting treatment for regulated activities; and

 

·                  other matters that may be disclosed from time to time in CMS Energy’s and Consumers’ SEC filings, or in other publicly issued documents.

 

All forward-looking statements should be considered in the context of the risk and other factors described above and as detailed from time to time in CMS Energy’s and Consumers’ SEC filings.  For additional details regarding these and other uncertainties, see Part I – Item 1. Consolidated Financial Statements (Unaudited) – Notes to the Unaudited Consolidated Financial Statements – Note 1, Regulatory Matters and Note 2, Contingencies and Commitments; Part I – Item 2. MD&A – Outlook; and Part II – Item 1A. Risk Factors.

 

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CMS Energy Corporation

Consumers Energy Company

MANAGEMENT’S DISCUSSION AND ANALYSIS
OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS

 

This MD&A is a combined report of CMS Energy and Consumers.

 

EXECUTIVE OVERVIEW

 

CMS Energy is an energy company operating primarily in Michigan.  It is the parent holding company of several subsidiaries, including Consumers, an electric and gas utility, and CMS Enterprises, primarily a domestic independent power producer.  Consumers’ electric utility operations include the generation, purchase, distribution, and sale of electricity, and Consumers’ gas utility operations include the purchase, transmission, storage, distribution, and sale of natural gas.  Consumers’ customer base consists of a mix of residential, commercial, and diversified industrial customers.  CMS Enterprises, through its subsidiaries and equity investments, owns and operates power generation facilities.

 

CMS Energy and Consumers manage their businesses by the nature of services each provides.  CMS Energy operates principally in three business segments:  electric utility; gas utility; and enterprises, its non-utility operations and investments.  Consumers operates principally in two business segments:  electric utility and gas utility.

 

CMS Energy and Consumers earn revenue and generate cash from operations by providing electric and natural gas utility services; electric distribution and generation; gas transmission, storage, and distribution; and other energy-related services.  Their businesses are affected primarily by:

 

·                  regulation and regulatory matters;

·                  economic conditions;

·                  weather;

·                  energy commodity prices;

·                  interest rates; and

·                  CMS Energy’s and Consumers’ securities’ credit ratings.

 

CMS Energy’s and Consumers’ business strategy emphasizes the key elements depicted below:

 

 

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Accountability is part of CMS Energy’s and Consumers’ corporate culture.  CMS Energy and Consumers are committed to making the right choices to serve their customers safely and affordably and to acting responsibly as corporate citizens.  CMS Energy and Consumers hold themselves accountable to the highest standards of safety, operational performance, and ethical behavior, and work diligently to comply with all laws, rules, and regulations that govern the electric and gas industry.

 

In October 2013, Consumers released its first-ever accountability report.  The report provides an overview of Consumers’ efforts to continue meeting Michigan’s energy needs safely and efficiently, and highlights Consumers’ commitment to Michigan businesses, its corporate citizenship, and its role in reducing the state’s air emissions.

 

S AFE, E XCELLENT O PERATIONS

 

The safety of employees, customers, and the general public remains a priority of CMS Energy and Consumers.  Accordingly, CMS Energy and Consumers have worked to integrate a set of safety principles into their business operations and culture.  These principles include complying with applicable safety, health, and security regulations and implementing programs and processes aimed at continually improving safety and security conditions.  From 2006 through 2013, Consumers achieved a 72 percent reduction in the annual number of recordable safety incidents.

 

C USTOMER V ALUE

 

Consumers is undertaking a number of initiatives that reflect its intensified customer focus.  Consumers’ planned investments in reliability are aimed at improving safety, reducing customer outage frequency, reducing repetitive outages, and increasing customer satisfaction.  Also, in order to minimize increases in customer base rates, Consumers has undertaken several additional initiatives to reduce costs.  These initiatives, together with Consumers’ plans to accelerate further cost reductions, should allow Consumers to avoid increasing electric and gas base rates through 2014.

 

U TILITY I NVESTMENT

 

Consumers expects to make capital investments of about $7 billion from 2014 through 2018.  Consumers has limited its capital investment program to those investments it believes are needed to provide safe, reliable, and efficient service to its customers.  Consumers’ capital investment program is expected to result in annual rate base growth of five to seven percent while allowing Consumers to maintain sustainable customer base rate increases (excluding PSCR and GCR charges) at or below the rate of inflation.

 

Among the key components of Consumers’ investment program are projects that will enhance customer value.  Consumers’ planned base capital investments of $3.5 billion represent projects to maintain Consumers’ system and comprise $2.1 billion at the electric utility to preserve reliability and capacity and $1.4 billion at the gas utility to sustain deliverability and enhance pipeline integrity.  An additional $1.9 billion of planned reliability investments at Consumers are aimed at reducing outages and improving customer satisfaction; these investments comprise $1.0 billion at the electric utility to strengthen circuits and substations, replace poles, and upgrade the Ludington pumped-storage plant and $0.9 billion at the gas utility to replace mains and enhance transmission and storage systems.  Consumers also expects to spend $0.9 billion on environmental investments needed to comply with state and federal laws and regulations.

 

Consumers’ Smart Energy program, with an estimated total project capital cost of $0.8 billion, also represents a major capital investment.  The full-scale deployment of advanced metering infrastructure began in 2012 and is planned to continue through 2017.  Consumers has spent $0.3 billion through 2013

 

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on its Smart Energy program, and expects to spend an additional $0.5 billion, following a phased approach, from 2014 through 2017.

 

Renewable energy projects are another major component of Consumers’ planned capital investments.  Consumers expects to spend $0.2 billion on renewable energy investments, under an MPSC-approved renewable energy plan, from 2014 through 2018.  The 2008 Energy Law requires that at least ten percent of Consumers’ electric sales volume come from renewable energy sources by 2015, and it includes requirements for specific capacity additions.  Consumers has historically included renewable resources as part of its portfolio, with about eight percent of its present power supply coming from such renewable sources as hydropower, landfill gas, biomass, wind, anaerobic digestion, and solar.

 

In December 2013, Consumers signed an agreement to purchase a 540-MW gas-fueled electric generating plant located in Jackson, Michigan for $155 million.  In January 2014, as a result of this planned purchase, Consumers announced plans to defer the development of its proposed 700-MW gas-fueled electric generating plant at its Thetford complex in Genesee County, Michigan.

 

R EGULATION

 

Regulatory matters are a key aspect of CMS Energy’s and Consumers’ businesses, particularly Consumers’ rate cases and regulatory proceedings before the MPSC.  Important regulatory events and developments are summarized below.

 

·                  Income Tax Benefits Accounting Order:   In September 2013, the MPSC issued an order authorizing Consumers to accelerate the flow-through to electric and gas customers of certain income tax benefits associated primarily with the cost of removal of plant placed in service before 1993.  The order authorized Consumers to implement a regulatory treatment beginning in January 2014 that will return $211 million of income tax benefits over five years to electric customers and $264 million of income tax benefits over 12 years to gas customers.  For the three months ended March 31, 2014, this new treatment reduced Consumers’ income tax expense by $16 million.

 

·                  Securitization Financing Order:  In December 2013, the MPSC approved Consumers’ application, with modification, authorizing Consumers to proceed, at its sole discretion, with the sale of up to $389 million in Securitization bonds.  These bonds will finance the recovery of the remaining book value of seven smaller coal-fueled electric generating units and three smaller gas-fueled electric generating units that Consumers plans to retire in 2016, provided the Securitization transaction is successful.

 

Consumers expects to proceed with the Securitization financing and issue Securitization bonds in 2014, subject to market conditions.  Upon issuance of the Securitization bonds, Consumers will adjust its retail electric base rates to exclude the revenue requirement associated with these costs.  Consumers will then collect a surcharge to pay the principal and interest on the Securitization bonds, as well as all related costs.  Consumers estimates that employing this recovery mechanism in place of existing ratemaking treatment will provide initial annual cost savings to full-service customers of $15 million.

 

·                  Gas Cost Recovery and Power Supply Cost Recovery:  Due to the impact on natural gas prices of extended periods of colder-than-normal winter weather in Michigan and throughout the United States, Consumers’ natural gas fuel costs for the three months ended March 31, 2014 were significantly higher than those projected in its 2013-2014 GCR plan.  As a result, Consumers recorded an $84 million underrecovery at March 31, 2014.  Consumers will roll this underrecovery into its 2014-2015 GCR plan.

 

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Consumers expects that higher natural gas fuel costs will continue into the 2014-2015 GCR plan year.  Consequently, in February 2014, Consumers filed an amendment to the 2014-2015 GCR plan it submitted to the MPSC in December 2013, requesting approval to increase the 2014-2015 GCR factor to be charged to customers.

 

The severe winter weather also affected Consumers’ power supply costs and Consumers recorded a $104 million underrecovery at March 31, 2014.  In March 2014, Consumers filed an amendment to its 2014 PSCR plan, requesting approval to increase the 2014 PSCR factor to be charged to customers beginning in July 2014.

 

The 2008 Energy Law limits alternative electric supply to ten percent of Consumers’ weather-adjusted retail sales of the preceding calendar year.  At March 31, 2014, Consumers’ electric deliveries under the ROA program were at the ten-percent limit.  Bills have been introduced to the Michigan House of Representatives and the Michigan Senate to raise or remove the ROA limit.  The House bill also proposes to deregulate electric generation service in Michigan within two years.  Consumers is unable to predict the outcome of these legislative proposals.  In addition, the Michigan legislature has conducted hearings on the subject of energy competition.  If the ROA limit were increased or if electric generation service in Michigan were deregulated, it could have a material adverse effect on Consumers’ financial results and operations.

 

Environmental regulation is another area of importance for CMS Energy and Consumers, and they are monitoring numerous legislative and regulatory initiatives, including initiatives to regulate greenhouse gases, and related litigation.  CMS Energy and Consumers believe that environmental laws and regulations related to their operations will continue to become more stringent and require them to make additional significant capital expenditures for emissions control equipment, CCR disposal, cooling water intake equipment, effluent treatment, and PCB remediation.  Present and reasonably anticipated state and federal environmental statutes and regulations, including but not limited to the Clean Air Act, the Clean Water Act, the Resource Conservation and Recovery Act, and CERCLA, will continue to have a material effect on CMS Energy and Consumers.

 

F INANCIAL P ERFORMANCE

 

For the three months ended March 31, 2014, CMS Energy’s net income available to common stockholders was $204 million, and diluted EPS were $0.75.  This compares with net income available to common stockholders of $144 million and diluted EPS of $0.53 for the three months ended March 31, 2013.  The main factors contributing to CMS Energy’s improved performance in 2014 were increased gas and electric deliveries due to colder weather and benefits from an electric rate order.

 

Consumers’ utility operations are seasonal.  The consumption of electric energy typically increases in the summer months, due primarily to the use of air conditioners and other cooling equipment, while peak demand for natural gas occurs in the winter due to colder temperatures and the resulting use of natural gas as heating fuel.  In addition, Consumers’ electric rates, which follow a seasonal rate design, are higher in the summer months than in the remaining months of the year.  A more detailed discussion of the factors affecting CMS Energy’s and Consumers’ performance can be found in the Results of Operations section that follows this Executive Overview.

 

CMS Energy and Consumers believe that economic conditions in Michigan are improving.  Consumers expects its electric deliveries to increase annually by about 0.5 to 1.0 percent on average through 2018, driven largely by the continued rise in industrial production.  Excluding the impacts of energy efficiency programs, Consumers expects its electric deliveries to increase by about 1.5 to 2.0 percent annually through 2018.  Consumers is projecting that its gas deliveries will remain stable through 2018.  This outlook reflects growth in gas demand offset by energy efficiency and conservation.

 

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As Consumers seeks to continue to receive fair and timely regulatory treatment, delivering customer value will remain a key strategic priority.  In order to minimize increases in customer base rates, Consumers has set goals to achieve further annual productivity improvements.  Additionally, Consumers will strive to give priority to capital investments that increase customer value or lower costs.

 

Consumers expects to continue to have sufficient capacity to fund its investment-based growth plans.  CMS Energy also expects its sources of liquidity to remain sufficient to meet its cash requirements.  CMS Energy and Consumers will continue to monitor developments in the financial and credit markets, as well as government policy responses to those developments, for potential implications for their businesses and their future financial needs.

 

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RESULTS OF OPERATIONS

 

CMS E NERGY C ONSOLIDATED R ESULTS OF O PERATIONS

 

In Millions, Except Per Share Amounts

 

Three Months Ended March 31

 

2014

 

2013

 

Change

 

Net Income Available to Common Stockholders

 

$

204

 

$

144

 

  $

60

 

Basic Earnings Per Share

 

$

0.77

 

$

0.55

 

  $

0.22

 

Diluted Earnings Per Share

 

$

0.75

 

$

0.53

 

  $

0.22

 

 

In Millions

 

Three Months Ended March 31

 

2014

 

2013

 

Change

 

Electric utility

 

$

100

 

$

66

 

  $

34

 

Gas utility

 

121

 

96

 

25

 

Enterprises

 

2

 

4

 

(2

)

Corporate interest and other

 

(19

)

(22

)

3

 

Net Income Available to Common Stockholders

 

$

204

 

$

144

 

  $

60

 

 

Presented in the following table are specific after-tax changes to net income available to common stockholders for the three months ended March 31, 2014 versus 2013:

 

 

 

In Millions

 

Reasons for the change

 

2014 better/(worse) than 2013

 

Gas sales

 

$

30

 

 

 

Electric sales

 

10

 

 

 

Electric rate order

 

20

 

 

 

Tax benefit associated with MPSC accounting order

 

16

 

 

 

Lower employee benefit costs, net of operating and maintenance cost increases

 

9

 

 

 

Higher depreciation and property taxes

 

(15

)

 

 

 

Other

 

(11

)

 

$

59

 

 

 

 

 

 

 

Corporate interest and other

 

 

 

3

 

Lower subsidiary earnings of enterprises segment

 

 

 

(2

)

Total change

 

 

 

$

60

 

 

C ONSUMERS E LECTRIC U TILITY R ESULTS OF O PERATIONS

 

 

 

In Millions

 

Three Months Ended March 31

 

2014

 

2013

 

Change

 

Net Income Available to Common Stockholders

 

$

100

 

$

66

 

$

34

 

Reasons for the change

 

 

 

 

 

 

 

Electric deliveries and rate increases

 

 

 

 

 

$

56

 

Power supply costs and related revenue

 

 

 

 

 

(2

)

Other income, net of expenses

 

 

 

 

 

(5

)

Maintenance and other operating expenses

 

 

 

 

 

8

 

Depreciation and amortization

 

 

 

 

 

(10

)

General taxes

 

 

 

 

 

(2

)

Income taxes

 

 

 

 

 

(11

)

Total change

 

 

 

 

 

$

34

 

 

Following is a discussion of significant changes to net income available to common stockholders for the three months ended March 31, 2014 versus 2013.

 

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Electric deliveries and rate increases:   For the three months ended March 31, 2014, electric delivery revenues increased $56 million compared with 2013.  This increase reflected $33 million from a May 2013 rate increase that Consumers self-implemented in March 2013, $17 million of higher customer deliveries, and a $6 million increase in other revenues.  Deliveries to end-use customers were 9.6 billion kWh in 2014 and 9.1 billion kWh in 2013.

 

Other income, net of expenses:   For the three months ended March 31, 2014, other income, net of expenses, decreased $5 million compared with 2013.  This decrease was due to a $2 million contribution to oppose certain Michigan legislative proposals related to ROA and to the absence, in 2014, of a $3 million gain related to a donation of CMS Energy stock by Consumers.

 

Maintenance and other operating expenses:   For the three months ended March 31, 2014, maintenance and other operating expenses decreased $8 million compared with 2013, due primarily to a reduction in OPEB costs resulting from OPEB Plan changes adopted in July 2013.

 

Depreciation and amortization:   For the three months ended March 31, 2014, depreciation and amortization expense increased $10 million compared with 2013, due primarily to increased plant in service.

 

Income taxes:   For the three months ended March 31, 2014, income taxes increased $11 million compared with 2013.  This change reflected a $17 million increase attributed primarily to higher electric utility earnings, offset partially by a $6 million benefit associated with the accelerated flow-through of income tax benefits under an MPSC accounting order that Consumers implemented in January 2014.

 

C ONSUMERS G AS U TILITY R ESULTS OF O PERATIONS

 

 

 

 

 

In Millions

 

Three Months Ended March 31

 

2014

 

2013

 

Change

 

Net Income Available to Common Stockholders

 

$

121

 

$

96

 

$

25

 

Reasons for the change

 

 

 

 

 

 

 

Gas deliveries and rate increases

 

 

 

 

 

$

32

 

Other income, net of expenses

 

 

 

 

 

(3

)

Maintenance and other operating expenses

 

 

 

 

 

8

 

Depreciation and amortization

 

 

 

 

 

(7

)

General taxes

 

 

 

 

 

(2

)

Interest charges

 

 

 

 

 

(1

)

Income taxes

 

 

 

 

 

(2

)

Total change

 

 

 

 

 

$

25

 

 

Following is a discussion of significant changes to net income available to common stockholders for the three months ended March 31, 2014 versus 2013.

 

Gas deliveries and rate increases:   For the three months ended March 31, 2014, gas delivery revenues increased $32 million compared with 2013.  This increase reflected $43 million of higher customer deliveries, due primarily to colder weather in 2014.  The increase was offset partially by an $11 million decrease in other revenues, due primarily to the energy efficiency program.  Deliveries to end-use customers were 157 bcf in 2014 and 132 bcf in 2013.

 

Maintenance and other operating expenses:   For the three months ended March 31, 2014, maintenance and other operating expenses decreased $8 million compared with 2013.  This decrease was due primarily to lower spending related to the energy efficiency program, and a reduction in OPEB costs resulting from OPEB Plan changes adopted in July 2013.

 

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Depreciation and amortization:   For the three months ended March 31, 2014, depreciation and amortization expense increased $7 million compared with 2013, due primarily to increased plant in service.

 

Income taxes:   For the three months ended March 31, 2014, income taxes increased $2 million compared with 2013.  This change reflected a $12 million increase attributed primarily to higher gas utility earnings, offset partially by a $10 million benefit associated with the accelerated flow-through of income tax benefits under an MPSC accounting order that Consumers implemented in January 2014.

 

E NTERPRISES R ESULTS OF O PERATIONS

 

 

 

 

 

In Millions

 

Three Months Ended March 31

 

2014

 

2013

 

Change

 

Net Income Available to Common Stockholders

 

$

2

 

4

 

$

(2

)

 

For the three months ended March 31, 2014, net income of the enterprises segment decreased $2 million compared with 2013, due to higher fuel and other operating costs related primarily to the extreme cold.

 

C ORPORATE I NTEREST AND O THER R ESULTS OF O PERATIONS

 

 

 

 

 

In Millions

 

Three Months Ended March 31

 

2014

 

2013

 

Change

 

Net Income (Loss) Available to Common Stockholders

 

$

(19

)

(22

)

$

3

 

 

For the three months ended March 31, 2014, corporate interest and other net expenses decreased $3 million compared with 2013, as a result of a reduction in miscellaneous corporate costs.

 

CASH POSITION, INVESTING, AND FINANCING

 

At March 31, 2014, CMS Energy had $789 million of consolidated cash and cash equivalents, which included $31 million of restricted cash and cash equivalents.  At March 31, 2014, Consumers had $209 million of consolidated cash and cash equivalents, which included $31 million of restricted cash and cash equivalents.

 

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Table of Contents

 

O PERATING A CTIVITIES

 

Presented in the following table are specific components of net cash provided by operating activities for the three months ended March 31, 2014 and 2013:

 

 

 

 

 

In Millions

 

Three Months Ended March 31

 

2014

 

2013

 

Change

 

CMS Energy, including Consumers

 

 

 

 

 

 

 

Net income

 

$

204

 

$

144

 

$

60

 

Non-cash transactions 1

 

326

 

334

 

(8

)

 

 

530

 

478

 

52

 

Postretirement benefits contributions

 

(2

)

(68

)

66

 

Proceeds from government grant

 

-

 

69

 

(69

)

Changes in core working capital 2

 

149

 

300

 

(151

)

Changes in other assets and liabilities, net

 

(66

)

(54

)

(12

)

Net cash provided by operating activities

 

$

611

 

$

725

 

$

(114

)

Consumers

 

 

 

 

 

 

 

Net income

 

$

221

 

$

162

 

$

59

 

Non-cash transactions 1

 

265

 

289

 

(24

)

 

 

486

 

451

 

35

 

Postretirement benefits contributions

 

(1

)

(67

)

66

 

Proceeds from government grant

 

-

 

69

 

(69

)

Changes in core working capital 2

 

155

 

296

 

(141

)

Changes in other assets and liabilities, net

 

6

 

(36

)

42

 

Net cash provided by operating activities

 

$

646

 

$

713

 

$

(67

)

 

 

1

Non-cash transactions comprise depreciation and amortization, changes in deferred income taxes, postretirement benefits expense, and other non-cash items.

 

 

 

 

2

Core working capital comprises accounts receivable and accrued revenues, inventories, and accounts payable.

 

For the three months ended March 31, 2014, net cash provided by operating activities at CMS Energy decreased $114 million compared with 2013, and net cash provided by operating activities at Consumers decreased $67 million compared with 2013.  The decreases were due primarily to an increase in gas and power supply underrecoveries as a result of severe winter weather and the absence, in 2014, of the receipt of a $69 million renewable energy grant.  These decreases were offset partially by a decrease in postretirement benefits contributions.

 

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I NVESTING A CTIVITIES

 

Presented in the following table are specific components of net cash used in investing activities for the three months ended March 31, 2014 and 2013:

 

 

 

 

 

In Millions

 

 

Three Months Ended March 31

 

2014

 

2013

 

Change

 

CMS Energy, including Consumers

 

 

 

 

 

 

 

Capital expenditures

 

 $

(304

)

 $

(274

)

 $

(30

)

Costs to retire property and other

 

(42

)

(19

)

(23

)

Net cash used in investing activities

 

 $

(346

)

 $

(293

)

 $

(53

)

Consumers

 

 

 

 

 

 

 

Capital expenditures

 

 $

(302

)

 $

(273

)

 $

(29

)

Costs to retire property and other

 

(13

)

(22

)

9

 

Net cash used in investing activities

 

 $

(315

)

 $

(295

)

 $

(20

)

 

For the three months ended March 31, 2014, net cash used in investing activities at CMS Energy increased $53 million compared with 2013, and net cash used in investing activities at Consumers increased $20 million compared with 2013.  The increases were due primarily to an increase in capital expenditures under Consumers’ capital investment program.  At CMS Energy, these changes were also due to an increase in EnerBank consumer lending.

 

F INANCING A CTIVITIES

 

Presented in the following table are specific components of net cash provided by (used in) financing activities for the three months ended March 31, 2014 and 2013:

 

 

 

In Millions

 

 

Three Months Ended March 31

 

2014

 

2013

 

Change

 

CMS Energy, including Consumers

 

 

 

 

 

 

 

Issuance of debt

 

 $

644

 

 $

299

 

 $

345

 

Retirement of debt

 

(104

)

(75

)

(29

)

Payment of common stock dividends

 

(72

)

(67

)

(5

)

Decrease in notes payable

 

(170

)

(110

)

(60

)

Other financing activities

 

23

 

14

 

9

 

Net cash provided by financing activities

 

 $

321

 

 $

61

 

 $

260

 

Consumers

 

 

 

 

 

 

 

Retirement of debt

 

 $

(11

)

 $

(10

)

 $

(1

)

Payment of common stock dividends

 

(135

)

(93

)

(42

)

Stockholder contribution from CMS Energy

 

150

 

150

 

-

 

Decrease in notes payable

 

(170

)

(110

)

(60

)

Other financing activities

 

(5

)

(5

)

-

 

Net cash used in financing activities

 

 $

(171

)

 $

(68

)

 $

(103

)

 

For the three months ended March 31, 2014, net cash provided by financing activities at CMS Energy increased $260 million compared with 2013 and net cash used in financing activities at Consumers increased $103 million compared with 2013.  At CMS Energy, the change was due primarily to an increase in net debt issuances in anticipation of planned debt retirements and refinancings, offset partially by repayments at Consumers under its accounts receivable sales program.  At Consumers, the change was due primarily to increases in common stock dividend payments and repayments under Consumers’ accounts receivable sales program.

 

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Table of Contents

 

CAPITAL RESOURCES AND LIQUIDITY

 

CMS Energy uses dividends from its subsidiaries and external financing and capital transactions to invest in its utility and non-utility businesses, retire debt, pay dividends, and fund its other obligations.  The ability of CMS Energy’s subsidiaries, including Consumers, to pay dividends to CMS Energy depends upon each subsidiary’s revenues, earnings, cash needs, and other factors.  In addition, Consumers’ ability to pay dividends is restricted by certain terms included in its debt covenants and articles of incorporation, and potentially by provisions under the Federal Power Act and the Natural Gas Act and FERC requirements.  For additional details on Consumers’ dividend restrictions, see Note 3, Financings and Capitalization – Dividend Restrictions.  For the three months ended March 31, 2014, Consumers paid $135 million in common stock dividends to CMS Energy.

 

In April 2013, CMS Energy entered into a continuous equity offering program permitting it to sell, from time to time through “at the market” offerings, common stock having an aggregate sales price of up to $50 million.  In March 2014, CMS Energy issued common stock under this program and received net proceeds of $30 million.

 

Consumers uses cash flows generated from operations and external financing transactions, as well as stockholder contributions from CMS Energy, to fund capital expenditures, retire debt, pay dividends, contribute to its employee benefit plans, and fund its other obligations.  As a result of accelerated pension funding in recent years and several initiatives to reduce costs, Consumers anticipates improved cash flows generated from operations in 2014.

 

Consumers also expects to issue Securitization bonds in 2014, subject to market conditions.  The MPSC, in a December 2013 order, authorized Consumers to proceed, at its sole discretion, with the sale of up to $389 million in highly rated, low-cost Securitization bonds to finance the recovery of the remaining book value of ten electric generating units that Consumers plans to retire by April 2016, provided the Securitization transaction is successful.

 

CMS Energy’s and Consumers’ access to the financial and capital markets depends on their credit ratings and on market conditions.  As evidenced by past financing transactions, CMS Energy and Consumers have had ready access to these markets and, barring major market dislocations or disruptions, they expect to continue to have such access.  If access to these markets were to diminish or otherwise become restricted, however, CMS Energy and Consumers would implement contingency plans to address debt maturities, which could include reduced capital spending.  CMS Energy and Consumers had the following secured revolving credit facilities available at March 31, 2014:

 

 

 

 

 

 

 

 

 

 

 

In Millions

 

 

 

Amount of

 

Amount

 

Letters of Credit

 

Amount

 

 

 

 

 

Facility

 

Borrowed

 

Outstanding

 

Available

 

Expiration Date 

 

CMS Energy

 

 

 

 

 

 

 

 

 

 

 

Revolving credit facility 1

 

$

550

 

$

-

 

$

2

 

$

548

 

December 2018

 

Consumers

 

 

 

 

 

 

 

 

 

 

 

Revolving credit facility 2

 

$

650

 

$

-

 

$

-

 

$

650

 

December 2018

 

Revolving credit facility 2

 

30

 

-

 

30

 

-

 

September 2014

 

 

 

1

Obligations under this facility are secured by Consumers common stock.

 

 

 

 

2

Obligations under this facility are secured by FMBs of Consumers.

 

CMS Energy and Consumers use these credit facilities for general working capital purposes and to issue letters of credit.  An additional source of liquidity is Consumers’ revolving accounts receivable sales program, which allows it to transfer up to $250 million of eligible accounts receivable as a secured

 

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borrowing.  At March 31, 2014, $250 million of accounts receivable were eligible for transfer under this program.

 

Certain of CMS Energy’s and Consumers’ credit agreements, debt indentures, and other facilities contain covenants that require CMS Energy and Consumers to maintain certain financial ratios, as defined therein.  At March 31, 2014, no default had occurred with respect to any financial covenants contained in CMS Energy’s and Consumers’ credit agreements, debt indentures, or other facilities.  CMS Energy and Consumers were each in compliance with these covenants as of March 31, 2014, as presented in the following table:

 

 

 

 

 

 

March 31, 2014  

 

Credit Agreement, Indenture, or Facility 

 

Description

 

Limit

 

Actual

 

CMS Energy

 

 

 

 

 

 

 

 

$550 million revolving credit agreement and

 

 

 

 

 

 

 

 

$180 million term loan credit agreement

 

Debt to EBITDA

 

<  

6.0 to 1.0

 

4.5 to 1.0

 

$180 million term loan credit agreement

 

Interest Coverage

 

2.0 to 1.0

 

4.7 to 1.0

 

Consumers

 

 

 

 

 

 

 

 

$650 million and $30 million revolving credit agreements,

 

 

 

 

 

 

 

 

$35 million and $68 million reimbursement agreements, and

 

 

 

 

 

 

 

 

$250 million revolving accounts receivable sales agreement

 

Debt to Capital

 

<  

0.65 to 1.0

 

0.47 to 1.0

 

 

Components of CMS Energy’s and Consumers’ cash management plan include controlling operating expenses and capital expenditures and evaluating market conditions for financing and refinancing opportunities.  CMS Energy and Consumers believe that their present level of cash and their expected cash flows from operating activities, together with their access to sources of liquidity, will be sufficient to fund their contractual obligations for 2014 and beyond.

 

O FF- B ALANCE- S HEET A RRANGEMENTS

 

CMS Energy, Consumers, and certain of their subsidiaries also enter into various arrangements in the normal course of business to facilitate commercial transactions with third parties.  These arrangements include indemnities, surety bonds, letters of credit, and financial and performance guarantees.  Indemnities are usually agreements to reimburse a counterparty that may incur losses due to outside claims or breach of contract terms.  The maximum payment that could be required under a number of these indemnity obligations is not estimable; the maximum obligation under indemnities for which such amounts were estimable was $469 million at March 31, 2014.  While CMS Energy and Consumers believe it is unlikely that they will incur any material losses related to indemnities they have not recorded as liabilities, they cannot predict the impact of these contingent obligations on their liquidity and financial condition.  For additional details on these and other guarantee arrangements, see Note 2, Contingencies and Commitments – Guarantees.

 

OUTLOOK

 

Several business trends and uncertainties may affect CMS Energy’s and Consumers’ financial condition and results of operations.  These trends and uncertainties could have a material impact on CMS Energy’s and Consumers’ consolidated income, cash flows, or financial position.  For additional details regarding these and other uncertainties, see Forward-Looking Statements and Information; Note 2, Contingencies and Commitments; and Part II – Item 1A. Risk Factors.

 

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C ONSUMERS E LECTRIC U TILITY AND G AS U TILITY B USINESS O UTLOOK AND U NCERTAINTIES

 

Rate Matters:   Rate matters are critical to Consumers’ electric and gas utility businesses.  For additional details on rate matters, see Note 1, Regulatory Matters.

 

In order to minimize increases in customer base rates, Consumers has undertaken several initiatives to reduce costs through voluntary separation plans, accelerated pension funding, employee and retiree health-care cost sharing, negotiated labor agreements, information system efficiencies, and productivity improvement programs.  Consumers has also received approval from the MPSC for certain applications that will result in cost savings for customers.  These initiatives, together with Consumers’ plans to accelerate further cost reductions, should allow Consumers to avoid increasing electric and gas base rates through 2014.

 

Energy Optimization Plan:   The 2008 Energy Law requires Consumers to achieve energy savings equivalent to annual usage reduction targets through at least 2015.  The targets increase annually, with the goal of achieving cumulative reductions of six percent in customers’ electricity use and four percent in customers’ natural gas use by December 31, 2015.  Under its energy optimization plan, Consumers provides its customers with incentives to reduce usage by offering energy audits, rebates and discounts on purchases of highly efficient appliances, and other incentives and programs.  At March 31, 2014, Consumers had achieved cumulative reductions of five percent in customers’ electricity use and four percent in customers’ natural gas use.

 

Smart Energy:   Consumers’ grid modernization effort continues.  In 2012, Consumers began installing smart meters in Muskegon County, Michigan.  One of the functions of smart meters is to allow customers to monitor and manage their energy usage, which Consumers expects will help reduce demand during critical peak times, resulting in lower peak capacity requirements.  The installation of smart meters should also provide for both operational and customer benefits.  As of March 31, 2014, Consumers had upgraded 210,000 electric residential and small business customers in western Michigan to smart meters.  Of the customers scheduled for the upgrade, 0.5 percent have chosen not to participate in the smart meter program.

 

Consumers is able to read and bill from smart meters remotely; further functionality will continue to be added through mid-2015.  Consumers expects to have installed 385,000 smart meters throughout western Michigan by the end of 2014.  Consumers also plans to install communication modules on gas meters in areas where Consumers provides both electricity and natural gas to customers.

 

C ONSUMERS E LECTRIC U TILITY B USINESS O UTLOOK AND U NCERTAINTIES

 

Balanced Energy Initiative:   Consumers continues to experience increasing demand for electricity due to Michigan’s recovering economy and increased use of air conditioning, consumer electronics, and other electric devices, offset partially by the predicted effects of energy efficiency and conservation.

 

Subject to a successful Securitization transaction, as discussed below, Consumers plans to retire seven smaller coal-fueled electric generating units and three smaller gas-fueled electric generating units by April 2016.  Consumers had previously announced plans to mothball the seven coal-fueled units effective April 2016 and had received approval from MISO to do so.  The three gas-fueled units were mothballed in April 2009.

 

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With the planned retirement of these units and the potential tightening of the MISO capacity market, Consumers could experience a shortfall in generation capacity of up to 1,500 MW in 2016.  In order to address future capacity requirements and growing electric demand in Michigan, Consumers updated its balanced energy initiative, a comprehensive energy resource plan designed to meet the short-term and long-term electricity needs of its customers through:

 

·                  energy efficiency;

·                  demand management;

·                  expanded use of renewable energy;

·                  construction or purchase of electric generating units; and

·                  continued operation or upgrade of existing units.

 

In December 2013, Consumers signed an agreement to purchase a 540-MW gas-fueled electric generating plant located in Jackson, Michigan for $155 million from AlphaGen Power LLC and DPC Juniper, LLC, affiliates of JPMorgan Chase & Co.  Consumers expects to close the purchase, which is subject to MPSC, FERC, and other approvals, in late 2015.  In January 2014, as a result of this planned purchase, Consumers announced plans to defer the development of its proposed 700-MW gas-fueled electric generating plant at its Thetford complex in Genesee County, Michigan, which Consumers estimated would have cost $700 million.

 

Electric Rate Matters:   In December 2013, the MPSC approved, with modification, Consumers’ Securitization application and issued a Securitization financing order that authorizes Consumers to proceed, at its sole discretion, with the sale of up to $389 million in Securitization bonds to finance the recovery of the remaining book value of the seven smaller coal-fueled electric generating units and three smaller gas-fueled electric generating units described above.  Under Michigan law, electric utilities are permitted to use highly rated, low-cost Securitization bonds to finance the recovery of qualified costs.  Consumers expects to proceed with the Securitization financing and issue Securitization bonds in 2014, subject to market conditions.

 

Upon issuance of the Securitization bonds, Consumers will adjust its retail electric base rates to exclude the revenue requirement associated with the securitized costs.  Consumers will then collect a surcharge to pay the principal and interest on the Securitization bonds, as well as all related costs.  Consumers estimates that employing this recovery mechanism in place of existing ratemaking treatment will provide initial annual cost savings to full-service customers of $15 million.

 

As an alternative to its Securitization application, Consumers had filed an application in August 2013 requesting MPSC advanced approval to use standard utility plant retirement accounting in the event of early retirement of these ten units.  Specifically, Consumers requested the MPSC to provide assurance that the full amount of the undepreciated investment, demolition costs, and cost of removal, including a return on the assets, would, upon their early retirement, be recovered through retail electric base rates.  As a result of the MPSC’s issuance of the Securitization financing order, Consumers has taken action to suspend and extend indefinitely the schedule in this case.

 

For additional details on rate matters, see Note 1, Regulatory Matters.

 

Renewable Energy Plan:  Consumers’ renewable energy plan details how Consumers expects to meet REC and capacity standards prescribed by the 2008 Energy Law.  This law requires Consumers to use RECs, which represent proof that the associated electricity was generated from a renewable energy resource, to achieve certain renewable energy targets.  The targets increase annually, with a goal of using RECs in an amount equal to at least ten percent of Consumers’ electric sales volume (estimated to be 3.3 million RECs annually) in 2015 and each year thereafter.  Under its renewable energy plan, Consumers expects to meet its renewable energy requirement each year with a combination of newly generated RECs and previously generated RECs carried over from prior years.

 

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The 2008 Energy Law also requires Consumers to obtain 500 MW of new capacity from renewable energy resources by the end of 2015, either through generation resources owned by Consumers or through agreements to purchase capacity from other parties.  Through March 2014, Consumers has contracted for the purchase of 302 MW of nameplate capacity from renewable energy suppliers and owns 100 MW of nameplate capacity at its Lake Winds ®  Energy Park.

 

Consumers expects to meet the balance of the renewable capacity requirement through the completion of its Cross Winds ®  Energy Park, a 105-MW wind park in Tuscola County, Michigan.  Consumers began construction of Cross Winds ®  Energy Park in October 2013 and expects to begin operations in late 2014.  Cross Winds ®  Energy Park will qualify for certain federal production tax credits that should reduce significantly the cost of meeting the renewable requirements of the 2008 Energy Law.  Consumers expects to qualify for $100 million to $120 million of federal production tax credits, which will be based on the wind project’s production over its first ten years of operation.  These cost savings will be passed on to customers.

 

Electric Customer Deliveries and Revenue:   Consumers’ electric customer deliveries are largely dependent on Michigan’s economy.  Consumers expects weather-adjusted electric deliveries to increase in 2014 by 1.5  percent compared with 2013.

 

Over the next five years, Consumers expects average electric delivery growth of about 0.5 to 1.0 percent annually.  This increase reflects growth in electric demand, offset partially by the predicted effects of energy efficiency programs and appliance efficiency standards.  Actual delivery levels will depend on:

 

·                  energy conservation measures and results of energy efficiency programs;

·                  fluctuations in weather; and

·                  Michigan economic conditions, including utilization, expansion, or contraction of manufacturing facilities, population trends, and housing activity.

 

Electric ROA:   A Michigan statute enacted in 2000 allows Consumers’ electric customers to buy electric generation service from Consumers or from alternative electric suppliers.  The 2008 Energy Law revised the statute by limiting alternative electric supply to ten percent of Consumers’ weather-adjusted retail sales of the preceding calendar year.  At March 31, 2014, electric deliveries under the ROA program were at the ten-percent limit and alternative electric suppliers were providing 786 MW of generation service to ROA customers.  Of Consumers’ 1.8 million electric customers, 310 customers, or 0.02 percent, purchased electric generation service under the ROA program.  Consumers expects 2014 electric deliveries under the ROA program to be at a similar level to 2013.

 

In December 2013, a bill was introduced to the Michigan House of Representatives that, if enacted, would revise the 2008 Energy Law by removing the ten-percent limit and allowing all of Consumers’ electric customers to take service from an alternative electric supplier.  Presently, the proportion of Consumers’ electric deliveries under the ROA program and on the ROA waiting list is 26 percent.  The bill also proposes to deregulate electric generation service in Michigan within two years.  No definitive action has been taken on this bill or on a similar bill introduced to the Michigan Senate in February 2013.  The Senate bill, if enacted, would revise the 2008 Energy Law and allow customers on the ROA program waiting list to take service from alternative electric suppliers.  The Senate bill also proposes an increase in the cap of six percentage points per year from 2014 through 2016.

 

Consumers is unable to predict the outcome of these legislative proposals.  In addition, the Michigan legislature has conducted hearings on the subject of energy competition.  If the ROA limit were increased or if electric generation service in Michigan were deregulated, it could have a material adverse effect on Consumers’ financial results and operations.

 

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Governor’s Energy Initiative:  In 2013, Michigan’s governor instituted a process to prepare a series of reports addressing energy efficiency, renewable energy, the electricity market and ROA, and other subjects.  The process was designed to help the governor and other lawmakers determine the state’s next steps regarding energy policies.  Following a series of public hearings, the chairman of the MPSC and Michigan’s Energy Office Director released four reports summarizing the information gathered.  In December 2013, the governor outlined several key goals for Michigan’s energy policy, including reducing the state’s reliance on coal, increasing the use of renewable energy and natural gas, and improving energy affordability and reliability while protecting the environment.

 

Electric Transmission:  In 2011, FERC issued an order in a rulemaking proceeding concerning regional electric transmission planning and cost allocations.  Consumers and several other electric utilities filed a joint petition seeking clarification/rehearing of FERC’s order and opposing the allocation methodology.  In 2012, following FERC’s denial of their requests for clarification/rehearing, Consumers and several other electric utilities filed a petition for review of FERC’s order with the U.S. Court of Appeals for the D.C. Circuit.  In May 2013, Consumers, along with other electric utilities, filed briefs in this matter.

 

In a related matter, in 2010, MISO filed and FERC approved a tariff revision proposing a cost allocation methodology for a new category of transmission projects.  Under this tariff revision, the cost of these new transmission projects will be spread proportionally across the MISO energy market.  Consumers believes that Michigan customers will bear additional costs under MISO’s tariff without receiving comparable benefits from these projects.  In 2011, Consumers, along with the Michigan Attorney General, ABATE, DTE Electric, and other parties, filed a petition for review of FERC’s order with the U.S. Court of Appeals for the Seventh Circuit.  In June 2013, the Court of Appeals issued an opinion largely affirming FERC’s orders regarding the cost allocation methodology.  In October 2013, the Michigan Attorney General filed, and Consumers and other parties joined, a petition with the U.S. Supreme Court seeking review of the Court of Appeals’ opinion.  In February 2014, the U.S Supreme Court refused to hear the challenge to the FERC decision.  Consumers expects to continue to recover transmission expenses, including those associated with the MISO tariff revision, through the PSCR process.

 

In 2012, ReliabilityFirst Corporation informed Consumers that Consumers may not be properly registered to meet certain NERC electric reliability standards.  Consumers has assessed its registration status, taking into consideration FERC’s December 2012 order on the definition of a bulk electric system, and in August 2013 notified ReliabilityFirst Corporation that it is preparing to register as a transmission owner, transmission planner, and transmission operator.  In light of this order, Consumers reviewed the classification of certain electric distribution assets and, in April 2014, filed an application for reclassification with the MPSC.  Consumers also plans to file an application for reclassification with FERC.

 

Electric Environmental Estimates:   Consumers’ operations are subject to various state and federal environmental laws and regulations.  Consumers estimates that it will incur expenditures of $0.9 billion from 2014 through 2018 to continue to comply with the Clean Air Act, Clean Water Act, and numerous state and federal environmental regulations.  Consumers expects to recover these costs in customer rates, but cannot guarantee this result.  Consumers’ primary environmental compliance focus includes, but is not limited to, the following matters:

 

Air Quality:   In 2011, the EPA released CSAPR, a final replacement rule for CAIR, which requires Michigan and 27 other states to improve air quality by reducing power plant emissions that, according to EPA computer models, contribute to ground-level ozone and fine particle pollution in other downwind states.  In 2012, the U.S. Court of Appeals for the D.C. Circuit voided CSAPR and held that CAIR would remain in place until the EPA promulgated a new rule.  This matter was appealed to the U.S. Supreme Court and a decision is expected in 2014.

 

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In 2012, the EPA published its final MACT emission standards for electric generating units, based on Section 112 of the Clean Air Act, calling the final rule MATS.  Under MATS, all of Consumers’ existing coal-fueled electric generating units are required to add additional controls for hazardous air pollutants.  Compliance is required by April 2015, unless a one-year extension is granted by the MDEQ.  Consumers has received the extension for ten of its coal-fueled units and expects to meet the extended deadline for three units it intends to continue operating.  Subject to a successful Securitization transaction, Consumers expects to retire the remaining seven units by the extended deadline.  Consumers expects to meet the April 2015 deadline for its two other coal-fueled units.  MATS is presently being litigated and the U.S. Court of Appeals for the D.C. Circuit recently denied the petitions challenging the final rule.

 

In 2012, the EPA finalized a rule that strengthens the air quality standard for fine particulate matter.  Consumers expects short-term impacts to be limited, but this new standard could give rise to air quality concerns in states downwind of Michigan and put pressure on Michigan and other Midwestern states to reduce emissions further.  Given its present strategy for CAIR and MATS compliance, however, Consumers will already be achieving significant reductions in emissions that contribute to the formation of fine particulate matter.  This rule is presently being litigated in the U.S. Court of Appeals for the D.C. Circuit.  A decision is expected in 2014.

 

Presently, Consumers’ strategy to comply with air quality regulations, including CAIR and MATS, involves the installation of emission control equipment at some facilities and the suspension of operations at others; however, Consumers continues to evaluate these rules in conjunction with other EPA rulemakings, litigation, and congressional action.  This evaluation could result in:

 

·                  changes in environmental compliance costs related to Consumers’ coal-fueled power plants;

·                  a change in the fuel mix at coal-fueled and oil-fueled power plants;

·                  changes in how certain plants are used; and

·                  the retirement, mothballing, or repowering with an alternative fuel of some of Consumers’ generating units.

 

The MDEQ renewed and issued the Renewable Operating Permit for B.C. Cobb in August 2011 and for J.H. Campbell in July 2013 after an extensive review and a public comment period.  The Sierra Club and the Natural Resources Defense Council filed separate petitions with the EPA to object to the MDEQ’s issuance of the state Renewable Operating Permit for both of these facilities, alleging that the facilities are not in compliance with certain provisions of the Clean Air Act, including NSR and Title V.  Consumers has responded to these allegations.  The EPA could either deny the petition outright or grant the petition and remand the matter to the MDEQ for further action.  The Sierra Club or the Natural Resources Defense Council could also file suit in federal district court seeking EPA action on the petition.  Consumers is unable to predict the outcome of these actions.

 

Greenhouse Gases:  In the recent past, there have been numerous legislative and regulatory initiatives at the state, regional, and national levels that involve the regulation of greenhouse gases.  Consumers continues to monitor and comment on these initiatives and to follow litigation involving greenhouse gases.  Consumers believes Congress may eventually pass greenhouse gas legislation, but is unable to predict the form and timing of any final legislation.

 

In January 2014, the EPA published proposed rules pursuant to Section 111 of the Clean Air Act to limit carbon dioxide emissions from new electric generating units.  New coal-fueled units would not be able to meet this limit without installing carbon dioxide control equipment using such methods as carbon capture and sequestration.  The proposed rules for new sources are expected to be finalized in 2014.  President Obama has also directed the EPA to address existing, modified, and reconstructed fossil-fuel-fired steam electric generating units with proposed standards, regulations, or guidelines to be completed by June 1, 2014, and final standards, regulations, or guidelines to be completed by June 1, 2015.  Subsequent state implementation plans are due by June 30, 2016.  Consumers believes that its balanced energy

 

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initiative, its present carbon reduction target, and its emphasis on supply diversity will position it favorably to deal with the impact of carbon regulation, but cannot predict the nature or outcome of these proposals.  Consumers will continue to monitor regulatory activity regarding greenhouse gas emissions standards that may affect electric generating units.

 

Litigation, as well as federal laws, EPA regulations regarding greenhouse gases, or similar treaties, state laws, or rules, if enacted or ratified, could require Consumers to replace equipment, install additional emission control equipment, purchase emission allowances, curtail operations, arrange for alternative sources of supply, or take other steps to manage or lower the emission of greenhouse gases.  Although associated capital or operating costs relating to greenhouse gas regulation or legislation could be material and cost recovery cannot be assured, Consumers expects to recover these costs and capital expenditures in rates consistent with the recovery of other reasonable costs of complying with environmental laws and regulations.

 

CCRs:   In 2010, the EPA proposed rules regulating CCRs, such as coal ash, under the Resource Conservation and Recovery Act.  Recent communications from the EPA stress the need to coordinate CCR rulemaking guidelines for steam electric generating plants under the Clean Water Act.  A final CCR rule is expected in late 2014.  Michigan already regulates CCRs as low-hazard industrial waste.  The EPA proposed a range of alternatives for regulating CCRs, including regulation as either a non-hazardous waste or a hazardous waste.  If coal ash were regulated as a hazardous waste, Consumers would likely cease the beneficial reuse of this product, which would result in a significant increase in the amount of coal ash requiring costly disposal.  Additionally, if the cost of upgrading existing coal ash disposal areas to meet hazardous waste landfill standards were to become economically prohibitive, existing coal ash disposal areas could close, requiring Consumers to find costly alternative arrangements for disposal.  Consumers is unable to predict the impacts from this wide range of possible outcomes, but significant expenditures are likely.

 

Water:  The EPA is expected to issue a final rule in 2014 to regulate existing electric generating plant cooling water intake systems under Section 316(b) of the Clean Water Act aimed at reducing alleged harmful impacts on fish and shellfish.  Consumers also expects the EPA to issue final regulations in 2015 that may require physical and/or chemical treatment of wastewater discharges from electric generating plants.  Consumers will evaluate these rules and their potential impacts on Consumers’ electric generating plants once they are final.

 

PCBs:  In 2010, the EPA issued an Advance Notice of Proposed Rulemaking, indicating that it is considering a variety of regulatory actions with respect to PCBs.  One approach would aim to phase out equipment containing PCBs by 2025.  Another approach would eliminate an exemption for small equipment containing PCBs.  To comply with any such regulatory actions, Consumers could incur substantial costs associated with existing electrical equipment potentially containing PCBs.  A proposed rule is expected in 2014.

 

Other electric environmental matters could have a major impact on Consumers’ outlook.  For additional details on other electric environmental matters, see Note 2, Contingencies and Commitments – Consumers Electric Utility Contingencies, “Electric Environmental Matters.”

 

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C ONSUMERS G AS U TILITY B USINESS O UTLOOK AND U NCERTAINTIES

 

Gas Deliveries:   Consumers expects weather-adjusted gas deliveries in 2014 and over the next five years to remain stable relative to 2013.  This outlook reflects modest growth in gas demand offset by the predicted effects of energy efficiency and conservation.  Actual delivery levels from year to year may vary from this expectation due to:

 

·                  fluctuations in weather;

·                  use by power producers;

·                  availability and development of renewable energy sources;

·                  changes in gas prices;

·                  Michigan economic conditions, including population trends and housing activity;

·                  the price of competing energy sources or fuels; and

·                  energy efficiency and conservation impacts.

 

Gas Transmission:  In May 2013, the MPSC approved Consumers’ application to build a 24-mile, 36-inch natural gas pipeline in St. Joseph and Branch Counties, Michigan, and Consumers began construction in October 2013.  Consumers expects that it will spend about $120 million for this project, and that the pipeline will be operational by the end of 2014.

 

Gas Transportation:   In 2012, Trunkline filed a proposal with FERC to cease transporting natural gas through one of its two main transmission pipelines serving Michigan.  More than 60 percent of the natural gas supplied to Consumers’ gas customers is delivered by Trunkline’s two main transmission pipelines.  In August 2012, Consumers filed a motion with FERC to protest against the proposed abandonment on the grounds that it would negatively impact customers and that it could hamper the development of gas-fueled electric generation in Michigan.  In its motion, Consumers stated that if Trunkline’s proposal is granted, the abandonment could result in higher gas prices and reduced availability for Michigan gas customers.  Michigan’s governor, the MPSC, and various other parties also filed protests with FERC.  In November 2013, however, FERC issued an order granting the abandonment request.  Consumers filed a request for rehearing of FERC’s order in December 2013.  In April 2014, FERC denied Consumers’ request for rehearing.

 

Gas Pipeline Safety:   In 2012, President Obama signed the Pipeline Safety, Regulatory Certainty, and Job Creation Act of 2011.  The law reauthorizes existing federal pipeline safety programs of the Pipeline and Hazardous Materials Safety Administration through 2015 and it contains provisions mandating:

 

·                  an increase in the maximum fine for safety violations to $2 million;

·                  an increase in the number of pipeline inspectors;

·                  a study regarding application of integrity management requirements outside of “high consequence areas”;

·                  a survey regarding existing plans for safe management and replacement of cast iron pipelines;

·                  prescribed notification and on-site incident response times;

·                  installation of automatic or remotely controlled shut-off valves on new or replaced pipelines where feasible;

·                  historical design and construction documentation to verify maximum allowable operating pressures; and

·                  establishment of new regulations for testing (pressure tests or equivalent methods) of previously untested pipelines in high-consequence areas.

 

Consumers continues to comply with laws and regulations governing natural gas pipeline safety.  These laws and regulations could cause Consumers to incur significant additional costs related to its natural gas

 

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pipeline safety programs.  Consumers expects that it would be able to recover the costs in rates, consistent with the recovery of other reasonable costs of complying with laws and regulations.

 

Gas Environmental Estimates:   Consumers expects to incur response activity costs at a number of sites, including 23 former MGP sites.  For additional details, see Note 2, Contingencies and Commitments – Consumers Gas Utility Contingencies, “Gas Environmental Matters.”

 

E NTERPRISES O UTLOOK AND U NCERTAINTIES

 

The primary focus with respect to CMS Energy’s remaining non-utility businesses is to optimize cash flow and maximize the value of their assets.

 

Trends, uncertainties, and other matters that could have a material impact on CMS Energy’s consolidated income, cash flows, or financial position include:

 

·                  indemnity and environmental remediation obligations at Bay Harbor;

·                  obligations related to a tax claim from the government of Equatorial Guinea;

·                  the outcome of certain legal proceedings;

·                  impacts of declines in electricity prices on the profitability of the enterprises segment’s generating units;

·                  representations, warranties, and indemnities provided by CMS Energy or its subsidiaries in connection with previous sales of assets;

·                  changes in commodity prices and interest rates on certain derivative contracts that do not qualify for hedge accounting and must be marked to market through earnings;

·                  changes in various environmental laws, regulations, principles, or practices, or in their interpretation; and

·                  economic conditions in Michigan, including population trends and housing activity.

 

For additional details regarding the enterprises segment’s uncertainties, see Note 2, Contingencies and Commitments.

 

O THER O UTLOOK AND U NCERTAINTIES

 

EnerBank:   EnerBank is a Utah state-chartered, FDIC-insured industrial bank providing unsecured consumer installment loans for financing home improvements.  EnerBank represented two percent of CMS Energy’s net assets at March 31, 2014, and three percent of CMS Energy’s net income available to common stockholders for the three months ended March 31, 2014.  The carrying value of EnerBank’s loan portfolio was $712 million at March 31, 2014.  Its loan portfolio was funded primarily by deposit liabilities of $668 million.  The twelve-month rolling average default rate on loans held by EnerBank has remained stable at 0.6 percent at March 31, 2014.  CMS Energy is required both by law and by contract to provide financial support, including infusing additional capital, to ensure that EnerBank satisfies mandated capital requirements and has sufficient liquidity to operate.  With its self-funding plan, EnerBank has exceeded these requirements historically and exceeded them as of March 31, 2014.

 

Litigation:   CMS Energy, Consumers, and certain of their subsidiaries are named as parties in various litigation matters, as well as in administrative proceedings before various courts and governmental agencies, arising in the ordinary course of business.  For additional details regarding these and other legal matters, see Note 1, Regulatory Matters and Note 2, Contingencies and Commitments.

 

NEW ACCOUNTING STANDARDS

 

There are no new accounting standards issued but not yet effective that are expected to have a material impact on CMS Energy’s or Consumers’ consolidated financial statements.

 

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CMS Energy Corporation

Consolidated Statements of Income

(Unaudited)

 

In Millions, Except Per Share Amounts

 

Three Months Ended March 31

 

2014

 

2013

 

 

 

 

 

 

 

Operating Revenue

 

$

2,523

 

$

1,979

 

 

 

 

 

 

 

Operating Expenses

 

 

 

 

 

Fuel for electric generation

 

219

 

154

 

Purchased and interchange power

 

498

 

333

 

Purchased power – related parties

 

24

 

23

 

Cost of gas sold

 

834

 

607

 

Maintenance and other operating expenses

 

266

 

282

 

Depreciation and amortization

 

199

 

181

 

General taxes

 

75

 

70

 

Total operating expenses

 

2,115

 

1,650

 

 

 

 

 

 

 

Operating Income

 

408

 

329

 

 

 

 

 

 

 

Other Income (Expense)

 

 

 

 

 

Allowance for equity funds used during construction

 

2

 

3

 

Income from equity method investees

 

4

 

5

 

Other income

 

3

 

3

 

Other expense

 

(7

)

(3

)

Total other income

 

2

 

8

 

 

 

 

 

 

 

Interest Charges

 

 

 

 

 

Interest on long-term debt

 

97

 

94

 

Other interest expense

 

5

 

5

 

Allowance for borrowed funds used during construction

 

(1

)

(1

)

Total interest charges

 

101

 

98

 

 

 

 

 

 

 

Income Before Income Taxes

 

309

 

239

 

Income Tax Expense

 

105

 

95

 

 

 

 

 

 

 

Net Income Available to Common Stockholders

 

$

204

 

$

144

 

 

 

 

 

 

 

Basic Earnings Per Average Common Share

 

$

0.77

 

$

0.55

 

Diluted Earnings Per Average Common Share

 

$

0.75

 

$

0.53

 

 

 

 

 

 

 

Dividends Declared Per Common Share

 

$

0.27

 

$

0.255

 

 

The accompanying notes are an integral part of these statements.

 

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CMS Energy Corporation

Consolidated Statements of Comprehensive Income

(Unaudited)

 

In Millions

 

Three Months Ended March 31

 

2014

 

2013

 

 

 

 

 

 

 

Net Income

 

$

204

 

$

144

 

 

 

 

 

 

 

Retirement Benefits Liability

 

 

 

 

 

Amortization of net actuarial loss, net of tax of $- and $-

 

-

 

1

 

 

 

 

 

 

 

Derivative Instruments

 

 

 

 

 

Reclassification adjustments included in net income, net of tax of $- and $-

 

1

 

-

 

 

 

 

 

 

 

Other Comprehensive Income

 

1

 

1

 

 

 

 

 

 

 

Comprehensive Income

 

$

205

 

$

145

 

 

The accompanying notes are an integral part of these statements.

 

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CMS Energy Corporation

Consolidated Statements of Cash Flows

(Unaudited)

 

In Millions

 

Three Months Ended March 31

 

2014

 

2013

 

 

 

 

 

 

 

Cash Flows from Operating Activities

 

 

 

 

 

Net income

 

$

204

 

$

144

 

Adjustments to reconcile net income to net cash provided by operating activities

 

 

 

 

 

Depreciation and amortization

 

199

 

181

 

Deferred income taxes and investment tax credit

 

102

 

87

 

Postretirement benefits expense

 

6

 

47

 

Other non-cash operating activities

 

19

 

19

 

Postretirement benefits contributions

 

(2

)

(68

)

Proceeds from government grant

 

-

 

69

 

Cash provided by (used in) changes in assets and liabilities

 

 

 

 

 

Accounts receivable, notes receivable, and accrued revenue

 

(313

)

(103

)

Inventories

 

345

 

447

 

Accounts payable

 

117

 

(44

)

Accrued expenses

 

(114

)

(101

)

Other current and non-current assets and liabilities

 

48

 

47

 

Net cash provided by operating activities

 

611

 

725

 

 

 

 

 

 

 

Cash Flows from Investing Activities

 

 

 

 

 

Capital expenditures (excludes assets placed under capital lease)

 

(304

)

(274

)

Cost to retire property

 

(14

)

(9

)

Other investing activities

 

(28

)

(10

)

Net cash used in investing activities

 

(346

)

(293

)

 

 

 

 

 

 

Cash Flows from Financing Activities

 

 

 

 

 

Proceeds from issuance of long-term debt

 

550

 

250

 

Retirements of EnerBank notes, net

 

16

 

(16

)

Issuance of common stock

 

33

 

24

 

Retirement of long-term debt

 

(26

)

(10

)

Payment of common stock dividends

 

(72

)

(67

)

Decrease in notes payable

 

(170

)

(110

)

Payment of capital lease obligations and other financing costs

 

(10

)

(10

)

Net cash provided by financing activities

 

321

 

61

 

 

 

 

 

 

 

Net Increase in Cash and Cash Equivalents

 

586

 

493

 

 

 

 

 

 

 

Cash and Cash Equivalents, Beginning of Period

 

172

 

93

 

 

 

 

 

 

 

Cash and Cash Equivalents, End of Period

 

$

758

 

$

586

 

 

The accompanying notes are an integral part of these statements.

 

35



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CMS Energy Corporation

Consolidated Balance Sheets

(Unaudited)

 

ASSETS

 

 

 

 

 

In Millions

 

 

 

March 31

 

December 31

 

 

 

2014

 

2013

 

 

 

 

 

 

 

Current Assets

 

 

 

 

 

Cash and cash equivalents

 

$

758

 

$

172

 

Restricted cash and cash equivalents

 

31

 

32

 

Accounts receivable and accrued revenue, less allowances of $33 in 2014 and 2013

 

1,032

 

914

 

Notes receivable

 

69

 

63

 

Accounts receivable – related parties

 

10

 

10

 

Accrued power supply and gas revenue

 

188

 

-

 

Inventories at average cost

 

 

 

 

 

Gas in underground storage

 

340

 

660

 

Materials and supplies

 

112

 

107

 

Generating plant fuel stock

 

85

 

114

 

Deferred income taxes

 

42

 

126

 

Deferred property taxes

 

167

 

202

 

Regulatory assets

 

16

 

40

 

Prepayments and other current assets

 

119

 

86

 

Total current assets

 

2,969

 

2,526

 

 

 

 

 

 

 

Plant, Property, and Equipment

 

 

 

 

 

Plant, property, and equipment, gross

 

16,322

 

16,184

 

Less accumulated depreciation and amortization

 

5,168

 

5,087

 

Plant, property, and equipment, net

 

11,154

 

11,097

 

Construction work in progress

 

1,206

 

1,149

 

Total plant, property, and equipment

 

12,360

 

12,246

 

 

 

 

 

 

 

Other Non-current Assets

 

 

 

 

 

Regulatory assets

 

1,496

 

1,530

 

Accounts and notes receivable, less allowances of $5 in 2014 and 2013

 

646

 

646

 

Investments

 

61

 

59

 

Other

 

392

 

409

 

Total other non-current assets

 

2,595

 

2,644

 

 

 

 

 

 

 

Total Assets

 

$

17,924

 

$

17,416

 

 

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Table of Contents

 

LIABILITIES AND EQUITY

 

 

 

 

 

 

 

 

 

In Millions

 

 

 

March 31

 

December 31

 

 

 

2014

 

2013

 

 

 

 

 

 

 

Current Liabilities

 

 

 

 

 

Current portion of long-term debt, capital leases, and financing obligation

 

$

666

 

$

562

 

Notes payable

 

-

 

170

 

Accounts payable

 

632

 

585

 

Accounts payable – related parties

 

10

 

10

 

Accrued rate refunds

 

-

 

12

 

Accrued interest

 

67

 

96

 

Accrued taxes

 

225

 

297

 

Regulatory liabilities

 

70

 

67

 

Other current liabilities

 

131

 

146

 

Total current liabilities

 

1,801

 

1,945

 

 

 

 

 

 

 

Non-current Liabilities

 

 

 

 

 

Long-term debt

 

7,536

 

7,101

 

Non-current portion of capital leases and financing obligation

 

135

 

138

 

Regulatory liabilities

 

2,236

 

2,215

 

Postretirement benefits

 

240

 

239

 

Asset retirement obligations

 

328

 

325

 

Deferred investment tax credit

 

39

 

40

 

Deferred income taxes

 

1,647

 

1,616

 

Other non-current liabilities

 

307

 

306

 

Total non-current liabilities

 

12,468

 

11,980

 

 

 

 

 

 

 

Commitments and Contingencies (Notes 1 and 2)

 

 

 

 

 

 

 

 

 

 

 

Equity

 

 

 

 

 

Common stockholders equity

 

 

 

 

 

Common stock, authorized 350.0 shares; outstanding 268.4 shares in 2014 and 266.1 shares in 2013

 

3

 

3

 

Other paid-in capital

 

4,746

 

4,715

 

Accumulated other comprehensive loss

 

(21

)

(22

)

Accumulated deficit

 

(1,110

)

(1,242

)

Total common stockholders equity

 

3,618

 

3,454

 

Noncontrolling interests

 

37

 

37

 

Total equity

 

3,655

 

3,491

 

 

 

 

 

 

 

Total Liabilities and Equity

 

$

17,924

 

$

17,416

 

 

 

 

 

 

 

The accompanying notes are an integral part of these statements.

 

 

 

 

 

 

37



Table of Contents

 

CMS Energy Corporation

Consolidated Statements of Changes in Equity

(Unaudited)

 

 

 

 

 

In Millions

 

Three Months Ended March 31

 

2014

 

2013

 

 

 

 

 

 

 

Total Equity at Beginning of Period

 

$

3,491

 

$

3,238

 

 

 

 

 

 

 

Common Stock

 

 

 

 

 

At beginning and end of period

 

3

 

3

 

 

 

 

 

 

 

Other Paid-in Capital

 

 

 

 

 

At beginning of period

 

4,715

 

4,669

 

Common stock issued

 

37

 

29

 

Common stock repurchased

 

(6

)

-

 

Common stock reissued

 

-

 

5

 

At end of period

 

4,746

 

4,703

 

 

 

 

 

 

 

Accumulated Other Comprehensive Loss

 

 

 

 

 

At beginning of period

 

(22

)

(55

)

Retirement benefits liability

 

 

 

 

 

At beginning of period

 

(21

)

(56

)

Amortization of net actuarial loss

 

-

 

1

 

At end of period

 

(21

)

(55

)

Investments

 

 

 

 

 

At beginning and end of period

 

-

 

2

 

Derivative instruments

 

 

 

 

 

At beginning of period

 

(1

)

(1

)

Reclassification adjustments included in net income

 

1

 

-

 

At end of period

 

-

 

(1

)

At end of period

 

(21

)

(54

)

 

 

 

 

 

 

Accumulated Deficit

 

 

 

 

 

At beginning of period

 

(1,242

)

(1,423

)

Net income attributable to CMS Energy

 

204

 

144

 

Common stock dividends declared

 

(72

)

(67

)

At end of period

 

(1,110

)

(1,346

)

 

 

 

 

 

 

Noncontrolling Interests

 

 

 

 

 

At beginning and end of period

 

37

 

44

 

 

 

 

 

 

 

Total Equity at End of Period

 

$

3,655

 

$

3,350

 

 

The accompanying notes are an integral part of these statements.

 

38



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39



Table of Contents

 

Consumers Energy Company

Consolidated Statements of Income

(Unaudited)

 

 

 

In Millions

 

Three Months Ended March 31

 

2014

 

2013

 

 

 

 

 

 

 

Operating Revenue

 

$

2,382

 

$

1,919

 

 

 

 

 

 

 

Operating Expenses

 

 

 

 

 

Fuel for electric generation

 

186

 

133

 

Purchased and interchange power

 

484

 

329

 

Purchased power – related parties

 

24

 

23

 

Cost of gas sold

 

768

 

600

 

Maintenance and other operating expenses

 

250

 

266

 

Depreciation and amortization

 

197

 

180

 

General taxes

 

74

 

69

 

Total operating expenses

 

1,983

 

1,600

 

 

 

 

 

 

 

Operating Income

 

399

 

319

 

 

 

 

 

 

 

Other Income (Expense)

 

 

 

 

 

Allowance for equity funds used during construction

 

2

 

3

 

Other income

 

3

 

7

 

Other expense

 

(6

)

(3

)

Total other income (expense)

 

(1

)

7

 

 

 

 

 

 

 

Interest Charges

 

 

 

 

 

Interest on long-term debt

 

59

 

59

 

Other interest expense

 

3

 

3

 

Allowance for borrowed funds used during construction

 

(1

)

(1

)

Total interest charges

 

61

 

61

 

 

 

 

 

 

 

Income Before Income Taxes

 

337

 

265

 

Income Tax Expense

 

116

 

103

 

 

 

 

 

 

 

Net Income Available to Common Stockholder

 

$

221

 

$

162

 

 

The accompanying notes are an integral part of these statements.

 

40



Table of Contents

 

Consumers Energy Company

Consolidated Statements of Comprehensive Income

(Unaudited)

 

 

 

In Millions

 

Three Months Ended March 31

 

2014

 

2013

 

 

 

 

 

 

 

Net Income

 

$

221

 

$

162

 

 

 

 

 

 

 

Retirement Benefits Liability

 

 

 

 

 

Amortization of net actuarial loss, net of tax of $- and $-

 

-

 

1

 

 

 

 

 

 

 

Investments

 

 

 

 

 

Unrealized gain on investments, net of tax of $1 and $-

 

2

 

4

 

Reclassification adjustments included in net income, net of tax of $- and $(1)

 

 

-

 

(3

)

 

 

 

 

 

 

Other Comprehensive Income

 

2

 

2

 

 

 

 

 

 

 

Comprehensive Income

 

$

223

 

$

164

 

 

The accompanying notes are an integral part of these statements.

 

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42



Table of Contents

 

Consumers Energy Company

Consolidated Statements of Cash Flows

(Unaudited)

 

 

 

 

 

In Millions

Three Months Ended March 31

 

2014

 

2013

 

 

 

 

 

Cash Flows from Operating Activities

 

 

 

 

Net income

 

$

221

 

$

162

Adjustments to reconcile net income to net cash provided by operating activities

 

 

 

 

Depreciation and amortization

 

197

 

180

Deferred income taxes and investment tax credit

 

46

 

44

Postretirement benefits expense

 

6

 

47

Other non-cash operating activities

 

16

 

18

Postretirement benefits contributions

 

(1)

 

(67)

Proceeds from government grant

 

-

 

69

Cash provided by (used in) changes in assets and liabilities

 

 

 

 

Accounts receivable, notes receivable, and accrued revenue

 

(303)

 

(102)

Inventories

 

338

 

442

Accounts payable

 

120

 

(44)

Accrued expenses

 

(43)

 

(80)

Other current and non-current assets and liabilities

 

49

 

44

Net cash provided by operating activities

 

646

 

713

 

 

 

 

 

Cash Flows from Investing Activities

 

 

 

 

Capital expenditures (excludes assets placed under capital lease)

 

(302)

 

(273)

Cost to retire property

 

(14)

 

(9)

Other investing activities

 

1

 

(13)

Net cash used in investing activities

 

(315)

 

(295)

 

 

 

 

 

Cash Flows from Financing Activities

 

 

 

 

Retirement of long-term debt

 

(11)

 

(10)

Payment of common stock dividends

 

(135)

 

(93)

Stockholder contribution

 

150

 

150

Decrease in notes payable

 

(170)

 

(110)

Payment of capital lease obligations and other financing costs

 

(5)

 

(5)

Net cash used in financing activities

 

(171)

 

(68)

 

 

 

 

 

Net Increase in Cash and Cash Equivalents

 

160

 

350

 

 

 

 

 

Cash and Cash Equivalents, Beginning of Period

 

18

 

5

 

 

 

 

 

Cash and Cash Equivalents, End of Period

 

$

178

 

$

355

 

The accompanying notes are an integral part of these statements.

 

43



Table of Contents

 

Consumers Energy Company

Consolidated Balance Sheets

(Unaudited)

 

ASSETS

 

 

 

 

 

 

 

 

In Millions

 

 

March 31

 

December 31

 

 

2014

 

2013

 

 

 

 

 

Current Assets

 

 

 

 

Cash and cash equivalents

 

$

178

 

$

18

Restricted cash and cash equivalents

 

31

 

31

Accounts receivable and accrued revenue, less allowances of $31 in 2014 and 2013

 

1,013

 

902

Notes receivable

 

-

 

14

Accounts receivable – related parties

 

1

 

4

Accrued power supply and gas revenue

 

188

 

-

Inventories at average cost

 

 

 

 

Gas in underground storage

 

340

 

653

Materials and supplies

 

107

 

103

Generating plant fuel stock

 

84

 

113

Deferred property taxes

 

167

 

202

Regulatory assets

 

16

 

40

Prepayments and other current assets

 

111

 

77

Total current assets

 

2,236

 

2,157

 

 

 

 

 

Plant, Property, and Equipment

 

 

 

 

Plant, property, and equipment, gross

 

16,181

 

16,044

Less accumulated depreciation and amortization

 

5,102

 

5,022

Plant, property, and equipment, net

 

11,079

 

11,022

Construction work in progress

 

1,204

 

1,147

Total plant, property, and equipment

 

12,283

 

12,169

 

 

 

 

 

Other Non-current Assets

 

 

 

 

Regulatory assets

 

1,496

 

1,530

Accounts and notes receivable

 

2

 

11

Investments

 

32

 

29

Other

 

263

 

283

Total other non-current assets

 

1,793

 

1,853

 

 

 

 

 

Total Assets

 

$

16,312

 

$

16,179

 

44



Table of Contents

 

LIABILITIES AND EQUITY

 

 

 

 

 

 

 

 

In Millions

 

 

March 31

 

December 31

 

 

2014

 

2013

 

 

 

 

 

Current Liabilities

 

 

 

 

Current portion of long-term debt, capital leases, and financing obligation

 

$

65

 

$

64

Notes payable

 

-

 

170

Accounts payable

 

611

 

571

Accounts payable – related parties

 

16

 

13

Accrued rate refunds

 

-

 

12

Accrued interest

 

43

 

63

Accrued taxes

 

343

 

353

Deferred income taxes

 

94

 

55

Regulatory liabilities

 

70

 

67

Other current liabilities

 

101

 

112

Total current liabilities

 

1,343

 

1,480

 

 

 

 

 

Non-current Liabilities

 

 

 

 

Long-term debt

 

4,567

 

4,579

Non-current portion of capital leases and financing obligation

 

135

 

138

Regulatory liabilities

 

2,236

 

2,215

Postretirement benefits

 

180

 

179

Asset retirement obligations

 

327

 

324

Deferred investment tax credit

 

39

 

40

Deferred income taxes

 

2,137

 

2,115

Other non-current liabilities

 

253

 

252

Total non-current liabilities

 

9,874

 

9,842

 

 

 

 

 

Commitments and Contingencies (Notes 1 and 2)

 

 

 

 

 

 

 

 

 

Equity

 

 

 

 

Common stockholder equity

 

 

 

 

Common stock, authorized 125.0 shares; outstanding 84.1 shares for both periods

 

841

 

841

Other paid-in capital

 

3,407

 

3,257

Accumulated other comprehensive loss

 

-

 

(2)

Retained earnings

 

810

 

724

Total common stockholder equity

 

5,058

 

4,820

Preferred stock

 

37

 

37

Total equity

 

5,095

 

4,857

 

 

 

 

 

Total Liabilities and Equity

 

$

16,312

 

$

16,179

 

The accompanying notes are an integral part of these statements.

 

45



Table of Contents

 

Consumers Energy Company

Consolidated Statements of Changes in Equity

(Unaudited)

 

 

 

 

 

In Millions

Three Months Ended March 31

 

2014

 

2013

 

 

 

 

 

Total Equity at Beginning of Period

 

$

4,857

 

$

4,582

 

 

 

 

 

Common Stock

 

 

 

 

At beginning and end of period

 

841

 

841

 

 

 

 

 

Other Paid-in Capital

 

 

 

 

At beginning of period

 

3,257

 

3,107

Stockholder contribution

 

150

 

150

At end of period

 

3,407

 

3,257

 

 

 

 

 

Accumulated Other Comprehensive Loss

 

 

 

 

At beginning of period

 

(2)

 

(8)

Retirement benefits liability

 

 

 

 

At beginning of period

 

(17)

 

(25)

Amortization of net actuarial loss

 

-

 

1

At end of period

 

(17)

 

(24)

Investments

 

 

 

 

At beginning of period

 

15

 

17

Unrealized gain on investments

 

2

 

4

Reclassification adjustments included in net income

 

-

 

(3)

At end of period

 

17

 

18

At end of period

 

-

 

(6)

 

 

 

 

 

Retained Earnings

 

 

 

 

At beginning of period

 

724

 

598

Net income

 

221

 

162

Common stock dividends declared

 

(135)

 

(93)

At end of period

 

810

 

667

 

 

 

 

 

Preferred Stock

 

 

 

 

At beginning and end of period

 

37

 

44

 

 

 

 

 

Total Equity at End of Period

 

$

5,095

 

$

4,803

 

The accompanying notes are an integral part of these statements.

 

46


 


Table of Contents

 

CMS Energy Corporation

Consumers Energy Company

NOTES TO THE UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS

 

These interim consolidated financial statements have been prepared by CMS Energy and Consumers in accordance with GAAP for interim financial information and with the instructions to Form 10-Q and Article 10 of Regulation S-X.  As a result, CMS Energy and Consumers have condensed or omitted certain information and note disclosures normally included in consolidated financial statements prepared in accordance with GAAP.  CMS Energy and Consumers have reclassified certain prior period amounts to conform to the presentation in the current period.  In management’s opinion, the unaudited information contained in this report reflects all adjustments of a normal recurring nature necessary to ensure the fair presentation of financial position, results of operations, and cash flows for the periods presented.  The notes to the unaudited consolidated financial statements and the related unaudited consolidated financial statements should be read in conjunction with the consolidated financial statements and related notes contained in the 2013 Form 10-K.  Due to the seasonal nature of CMS Energy’s and Consumers’ operations, the results presented for this interim period are not necessarily indicative of results to be achieved for the fiscal year.

 

1:                REGULATORY MATTERS

 

Regulatory matters are critical to Consumers.  The Michigan Attorney General, ABATE, the MPSC Staff, and certain other parties typically participate in MPSC proceedings concerning Consumers, such as Consumers’ rate cases and PSCR and GCR processes.  These parties often challenge various aspects of those proceedings, including the prudence of Consumers’ policies and practices, and seek cost disallowances and other relief.  The parties also have appealed significant MPSC orders.  Depending upon the specific issues, the outcomes of rate cases and proceedings, including judicial proceedings challenging MPSC orders or other actions, could have a material adverse effect on CMS Energy’s and Consumers’ liquidity, financial condition, and results of operations.  Consumers cannot predict the outcome of these proceedings.

 

There are multiple appeals pending that involve various issues concerning cost allocation among customers, the allocation of refunds among customer groups, the adequacy of the record evidence supporting the recovery of Smart Energy investments, and other matters.  Consumers is unable to predict the outcome of these appeals.

 

Income Tax Benefits Accounting Order:   In September 2013, the MPSC issued an order authorizing Consumers to accelerate the flow-through to electric and gas customers of certain income tax benefits associated primarily with the cost of removal of plant placed in service before 1993.  The order authorized Consumers to implement a regulatory treatment beginning January 2014 that will return $211 million of income tax benefits over five years to electric customers and $264 million of income tax benefits over 12 years to gas customers.  For the three months ended March 31, 2014, this new treatment reduced Consumers’ income tax expense by $16 million.  The new treatment, along with other cost saving initiatives that Consumers has undertaken, should allow Consumers to avoid increasing electric and gas base rates during 2014.

 

Gas Cost Recovery and Power Supply Cost Recovery:  Due to the impact on natural gas prices of extended periods of colder-than-normal winter weather in Michigan and throughout the United States, Consumers’ natural gas fuel costs for the three months ended March 31, 2014 were significantly higher than those projected in its 2013-2014 GCR plan.  As a result, Consumers recorded an $84 million underrecovery at March 31, 2014.  Consumers will roll this underrecovery into its 2014-2015 GCR plan.

 

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Consumers expects that higher natural gas fuel costs will continue into the 2014-2015 GCR plan year.  Consequently, in February 2014, Consumers filed an amendment to the 2014-2015 GCR plan it submitted to the MPSC in December 2013, requesting approval to increase the 2014-2015 GCR factor to be charged to customers.

 

The severe winter weather also affected Consumers’ power supply costs.  Extreme cold weather and heavy snowfall inhibited the delivery and use of coal at Consumers’ coal-fueled generating units.  Additionally, increases in natural gas prices raised the cost of electricity purchased from the MISO energy market as well as the cost of power generated at Consumers’ gas-fueled generating units.  As a result, Consumers’ power supply costs for the three months ended March 31, 2014 were significantly higher than those projected in the 2014 PSCR plan it submitted to the MPSC in September 2013.  Consequently, Consumers recorded a $104 million underrecovery at March 31, 2014.  In March 2014, Consumers filed an amendment to its 2014 PSCR plan, requesting approval to increase the 2014 PSCR factor to be charged to customers beginning in July 2014.

 

Energy Optimization Plan:   For exceeding its savings target under both electric and gas optimization plans during 2013, Consumers will request the MPSC’s approval to collect $18 million, the maximum incentive, in the energy optimization reconciliation to be filed in May 2014.

 

2:    CONTINGENCIES AND COMMITMENTS

 

CMS Energy and Consumers are involved in various matters that give rise to contingent liabilities.  Depending on the specific issues, the resolution of these contingencies could have a material effect on CMS Energy’s and Consumers’ liquidity, financial condition, and results of operations.  In their disclosures of these matters, CMS Energy and Consumers provide an estimate of the possible loss or range of loss when such an estimate can be made.  Disclosures that state that CMS Energy or Consumers cannot predict the outcome of a matter indicate that they are unable to estimate a possible loss or range of loss for the matter.

 

CMS E NERGY C ONTINGENCIES

 

Gas Index Price Reporting Investigation:   In 2002, CMS Energy notified appropriate regulatory and governmental agencies that some employees at CMS MST and CMS Field Services appeared to have provided inaccurate information regarding natural gas trades to various energy industry publications which compile and report index prices.  Although CMS Energy has not received any formal notification that the DOJ has completed its investigation, the DOJ’s last request for information occurred in 2003, and CMS Energy completed its response to this request in 2004.  CMS Energy is unable to predict the outcome of the DOJ investigation and what effect, if any, the investigation will have on CMS Energy.

 

Gas Index Price Reporting Litigation:   CMS Energy, along with CMS MST, CMS Field Services, Cantera Natural Gas, Inc., and Cantera Gas Company, have been named as defendants in various lawsuits arising as a result of alleged inaccurate natural gas price reporting to publications that report trade information.  Allegations include manipulation of NYMEX natural gas futures and options prices, price-fixing conspiracies, restraint of trade, and artificial inflation of natural gas retail prices in Kansas, Missouri, and Wisconsin.  The following provides more detail on the cases in which CMS Energy or its affiliates remain as parties:

 

·                  In 2005, CMS Energy, CMS MST, and CMS Field Services were named as defendants in a putative class action filed in Kansas state court, Learjet, Inc., et al. v. Oneok, Inc., et al.  The complaint alleges that during the putative class period, January 1, 2000 through October 31, 2002, the defendants engaged in a scheme to violate the Kansas Restraint of Trade Act.  The plaintiffs are seeking statutory full consideration damages consisting of the full consideration paid by the plaintiffs for natural gas allegedly purchased from the defendants.

 

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·                  In 2007, a class action complaint, Heartland Regional Medical Center, et al. v. Oneok, Inc. et al., was filed as a putative class action in Missouri state court alleging violations of Missouri antitrust laws.  The defendants, including CMS Energy, CMS Field Services, and CMS MST, are alleged to have violated the Missouri antitrust law in connection with their natural gas reporting activities.  The plaintiffs are seeking full consideration damages and treble damages.

 

·                  In 2006, a class action complaint, Arandell Corp., et al. v. XCEL Energy Inc., et al., was filed in Wisconsin state court on behalf of Wisconsin commercial entities that purchased natural gas between January 1, 2000 and October 31, 2002.  The defendants, including CMS Energy, CMS ERM, and Cantera Gas Company, are alleged to have violated Wisconsin’s antitrust statute.  The plaintiffs are seeking full consideration damages, plus exemplary damages and attorneys’ fees.

 

·                  In 2009, a class action complaint, Newpage Wisconsin System v. CMS ERM, et al., was filed in circuit court in Wood County, Wisconsin, against CMS Energy, CMS ERM, Cantera Gas Company, and others.  The plaintiff is seeking full consideration damages, treble damages, costs, interest, and attorneys’ fees.

 

·                  In 2005, J.P. Morgan Trust Company, N.A., in its capacity as Trustee of the FLI Liquidating Trust, filed an action in Kansas state court against CMS Energy, CMS MST, CMS Field Services, and others.  The complaint alleges various claims under the Kansas Restraint of Trade Act.  The plaintiff is seeking statutory full consideration damages for its purchases of natural gas in 2000 and 2001.

 

After removal to federal court, all of the cases described above were transferred to the MDL.  In 2010, CMS Energy and Cantera Gas Company were dismissed from the Newpage case.  In 2011, all claims against remaining CMS Energy defendants in the MDL cases were dismissed based on FERC preemption.  Plaintiffs filed appeals in all of the cases.  The issues on appeal were whether the district court erred in dismissing the cases based on FERC preemption and denying the plaintiffs’ motions for leave to amend their complaints to add a federal Sherman Act antitrust claim.  The plaintiffs did not appeal the dismissal of CMS Energy as a defendant in these cases, but other CMS Energy entities remain as defendants.

 

In April 2013, the U.S. Court of Appeals for the Ninth Circuit reversed the MDL decision and remanded the case to the MDL judge for further proceedings.  The appellate court found that FERC preemption does not apply under the facts of these cases.  The Court affirmed the MDL court’s denial of leave to amend to add federal antitrust claims.

 

In August 2013, the joint defense group in these cases, of which CMS Energy defendants are members, filed a petition with the U.S. Supreme Court in an attempt to overturn the decision of the U.S. Court of Appeals for the Ninth Circuit.  The petition is pending action by the U.S. Supreme Court, which is waiting for an opinion from the Solicitor General.

 

These cases involve complex facts, a large number of similarly situated defendants with different factual positions, and multiple jurisdictions.  Presently, any estimate of liability would be highly speculative; the amount of CMS Energy’s possible loss would be based on widely varying models previously untested in this context.  If the outcome after appeals is unfavorable, these cases could have a material adverse impact on CMS Energy’s liquidity, financial condition, and results of operations.

 

Bay Harbor:   CMS Energy retained environmental remediation obligations for the collection and treatment of leachate, a liquid consisting of water and other substances, at Bay Harbor after selling its interests in the development in 2002.  Leachate is produced when water enters into cement kiln dust piles left over from former cement plant operations at the site.  In 2012, CMS Energy and the MDEQ finalized an agreement that established the final remedies and the future release criteria at the site.  CMS Energy

 

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has completed all construction necessary to implement the remedies required by the agreement and will continue to maintain and operate a system to discharge treated leachate into Little Traverse Bay under an NPDES permit issued in 2010.  This permit requires renewal every five years.

 

Various claims have been brought against CMS Land or its affiliates, including CMS Energy, alleging environmental damage to property, loss of property value, insufficient disclosure of environmental matters, breach of agreement relating to access, or other matters.  In 2010, CMS Land and other parties received a demand for payment from the EPA in the amount of $7 million, plus interest, whereby the EPA is seeking recovery under CERCLA of the EPA’s response costs incurred at the Bay Harbor site.  CMS Land has communicated to the EPA that it does not believe that this is a valid claim.

 

CMS Energy has recorded a cumulative charge related to Bay Harbor of $229 million, which includes accretion expense.  At March 31, 2014, CMS Energy had a recorded liability of $51 million for its remaining obligations.  CMS Energy calculated this liability based on discounted projected costs, using a discount rate of 4.34 percent and an inflation rate of one percent on annual operating and maintenance costs.  The undiscounted amount of the remaining obligation is $69 million.  CMS Energy expects to pay $6 million in 2014, $5 million in 2015, $5 million in 2016, $4 million in 2017, and $4 million in 2018, and the remaining amount thereafter on long-term liquid disposal and operating and maintenance costs.  CMS Energy’s estimate of response activity costs and the timing of expenditures could change if there are changes in circumstances or assumptions used in calculating the liability.

 

Although a liability for its present estimate of remaining response activity costs has been recorded, CMS Energy cannot predict the ultimate financial impact or outcome of this matter.

 

Equatorial Guinea Tax Claim:   In January 2002, CMS Energy sold its oil, gas, and methanol investments in Equatorial Guinea.  The government of Equatorial Guinea claims that CMS Energy owes $142 million in taxes, plus significant penalties and interest, in connection with the sale and has requested arbitration.  CMS Energy has concluded that the government’s tax claim is without merit.  CMS Energy is vigorously contesting the claim, and cannot predict the financial impact or outcome of this matter.

 

C ONSUMERS E LECTRIC U TILITY C ONTINGENCIES

 

Electric Environmental Matters:   Consumers’ operations are subject to environmental laws and regulations.  Historically, Consumers has generally been able to recover, in customer rates, the costs to operate its facilities in compliance with these laws and regulations.

 

Cleanup and Solid Waste:   Consumers expects to incur remediation and other response activity costs at a number of sites under NREPA.  Consumers believes that these costs should be recoverable in rates, but cannot guarantee that outcome.  Consumers estimates that its liability for NREPA sites will be between $4 million and $6 million.  At March 31, 2014, Consumers had a recorded liability of $4 million, the minimum amount in the range of its estimated probable NREPA liability.

 

Consumers is a potentially responsible party at a number of contaminated sites administered under CERCLA.  CERCLA liability is joint and several.  In 2010, Consumers received official notification from the EPA that identified Consumers as a potentially responsible party for cleanup of PCBs at the Kalamazoo River CERCLA site.  The notification claimed that the EPA has reason to believe that Consumers disposed of PCBs and arranged for the disposal and treatment of PCB-containing materials at portions of the site.  In April 2011, Consumers received a follow-up letter from the EPA requesting that Consumers agree to participate in a removal action plan along with several other companies for an area of lower Portage Creek, which is connected to the Kalamazoo River.  All parties, including Consumers, that were asked to participate in the removal action plan declined to accept liability.  Until further information is received from the EPA, Consumers is unable to estimate a range of potential liability for cleanup of the river.

 

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Based on its experience, Consumers estimates that its share of the total liability for other known CERCLA sites will be between $3 million and $9 million.  Various factors, including the number of potentially responsible parties involved with each site, affect Consumers’ share of the total liability.  At March 31, 2014, Consumers had a recorded liability of $3 million for its share of the total liability at these sites, the minimum amount in the range of its estimated probable CERCLA liability.

 

The timing of payments related to Consumers’ remediation and other response activities at its CERCLA and NREPA sites is uncertain.  Consumers periodically reviews these cost estimates.  Any significant change in the underlying assumptions, such as an increase in the number of sites, different remediation techniques, the nature and extent of contamination, and legal and regulatory requirements, could affect its estimates of NREPA and CERCLA liability.

 

Ludington PCB:   In 1998, during routine maintenance activities, Consumers identified PCB as a component in certain paint, grout, and sealant materials at Ludington.  Consumers removed and replaced part of the PCB material with non-PCB material.  Consumers has had several communications with the EPA regarding this matter.  Consumers cannot predict the financial impact or outcome of this matter.

 

Electric Utility Plant Air Permit Issues and Notices of Violation:   In 2007, Consumers received an NOV/FOV from the EPA alleging that fourteen utility boilers exceeded the visible emission limits in their associated air permits.  Consumers has responded formally to the NOV/FOV denying the allegations.  In addition, in 2008, Consumers received an NOV for three of its coal-fueled facilities alleging, among other things, violations of NSR PSD regulations relating to ten projects from 1986 to 1998 allegedly subject to review under the NSR.  The EPA has alleged that some utilities have classified incorrectly major plant modifications as RMRR rather than seeking permits from the EPA or state regulatory agencies to modify their plants.  Consumers responded to the information requests from the EPA on this subject in the past.  Consumers believes that it has properly interpreted the requirements of RMRR.

 

Consumers is engaged in discussions with the EPA on all of these matters.  Depending upon the outcome of these discussions, the EPA could bring legal action against Consumers and/or Consumers could be required to install additional pollution control equipment at some or all of its coal-fueled electric generating plants, surrender emission allowances, engage in Environmental Mitigation Projects, and/or pay fines.  Additionally, Consumers would need to assess the viability of continuing operations at certain plants.  The potential costs relating to these matters could be material.  Consumers expects that it would be able to recover some or all of the costs in rates, consistent with the recovery of other reasonable costs of complying with environmental laws and regulations, but cannot reasonably estimate the extent of cost recovery.  Although Consumers cannot predict the financial impact or outcome of the entirety of these discussions, it does not expect any future loss from civil penalties and/or Environmental Mitigation Projects to be material.

 

Nuclear Matters :   The matters discussed in this section relate to Consumers’ previously owned nuclear generating plants.  Consumers no longer owns or operates any nuclear generating facilities.

 

Consumers filed a complaint in 2002 for damages resulting from the DOE’s failure to accept spent nuclear fuel from Palisades and Big Rock.  In 2011, Consumers entered into an agreement with the DOE to settle its claims for $120 million.  As part of this agreement, Consumers also settled its liability to the DOE to fund the disposal of spent nuclear fuel used at Palisades and Big Rock before 1983.  In December 2012, the MPSC issued an order establishing the regulatory treatment of the settlement amount.  In this order, the MPSC also relieved Consumers of its obligation to establish an independent trust fund for the amount that was payable to the DOE prior to the settlement.  In March 2013, a party in this case filed an appeal with the Michigan Court of Appeals to dispute the December 2012 MPSC order.  Oral argument was held in April 2014.

 

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Renewable Energy Matters:   In April 2013, a group of landowners filed a lawsuit in Mason County (Michigan) Circuit Court alleging, among other things, personal injury, loss of property value, and impacts to the use and enjoyment of their land as a result of the operations of Lake Winds ®  Energy Park.  Consumers cannot predict the ultimate financial impact or outcome of this matter.

 

C ONSUMERS G AS U TILITY C ONTINGENCIES

 

Gas Environmental Matters:   Consumers expects to incur remediation and other response activity costs at a number of sites under the NREPA.  These sites include 23 former MGP facilities.  Consumers operated the facilities on these sites for some part of their operating lives.  For some of these sites, Consumers has no present ownership interest or may own only a portion of the original site.

 

At March 31, 2014, Consumers had a recorded liability of $118 million for its remaining obligations for these sites.  This amount represents the present value of long-term projected costs, using a discount rate of 2.57 percent and an inflation rate of 2.5 percent.  The undiscounted amount of the remaining obligation is $128 million.  Consumers expects to incur remediation and other response activity costs in 2014 and in each of the next four years as follows:

 

In Millions

 

 

 

2014

 

2015

 

2016

 

2017

 

2018

 

Consumers

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Remediation and other response activity costs

 

$

9

 

$

12

 

$

12

 

$

10

 

$

19 

 

 

Consumers periodically reviews these cost estimates.  Any significant change in the underlying assumptions, such as an increase in the number of sites, changes in remediation techniques, or legal and regulatory requirements, could affect Consumers’ estimates of annual response activity costs and the MGP liability.

 

Pursuant to orders issued by the MPSC, Consumers defers its MGP-related remediation costs and recovers them from its customers over a ten-year period.  At March 31, 2014, Consumers had a regulatory asset of $148 million related to the MGP sites.

 

Consumers estimates that its liability to perform remediation and other response activities at NREPA sites other than the MGP sites will be up to $3 million.  At March 31, 2014, Consumers had a recorded liability of less than $1 million, the minimum amount in the range of its estimated probable liability.

 

G UARANTEES

 

Presented in the following table are CMS Energy’s and Consumers’ guarantees at March 31, 2014:

 

In Millions

 

 

 

 

 

 

 

Maximum

 

Carrying

 

Guarantee Description

 

Issue Date

 

Expiration Date

 

Obligation

 

Amount

 

CMS Energy, including Consumers

 

 

 

 

 

 

 

 

 

Indemnity obligations from asset sales and other agreements

 

Various

 

Various through
September 2029

 

$

469

   1

$

16

 

Guarantees

 

Various

 

Various through
March 2021

 

54

 

-

 

Consumers

 

 

 

 

 

 

 

 

 

Indemnity obligations and other guarantees

 

Various

 

Various through
September 2029

 

$

30

 

$

1

 

 

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1  The majority of this amount arises from stock and asset sale agreements under which CMS Energy or a subsidiary of CMS Energy, other than Consumers, indemnified the purchaser for losses resulting from various matters, including claims related to tax disputes, claims related to power purchase agreements, and defects in title to the assets or stock sold to the purchaser by CMS Energy subsidiaries.  Except for items described elsewhere in this Note, CMS Energy believes the likelihood of material loss to be remote for the indemnity obligations not recorded as liabilities.

 

Presented in the following table is additional information regarding CMS Energy’s and Consumers’ guarantees:

 

Guarantee Description

 

How Guarantee Arose

 

Events That Would Require Performance

CMS Energy, including Consumers

 

 

 

 

Indemnity obligations from asset

 

Stock and asset sale

 

Findings of misrepresentation,

sales and other agreements

 

agreements

 

breach of warranties, tax claims, and

 

 

 

 

other specific events or circumstances

 

 

 

 

 

Guarantees

 

Normal operating

 

Nonperformance or non-payment by a

 

 

activity

 

subsidiary under a related contract

Consumers

 

 

 

 

Indemnity obligations and

 

Normal operating

 

Nonperformance or claims made by a third

other guarantees

 

activity

 

party under a related contract

 

CMS Energy, Consumers, and certain other subsidiaries of CMS Energy also enter into various agreements containing tax and other indemnity provisions for which they are unable to estimate the maximum potential obligation.  These factors include unspecified exposure under certain agreements.  CMS Energy and Consumers consider the likelihood that they would be required to perform or incur substantial losses related to these indemnities to be remote.

 

O THER C ONTINGENCIES

 

Other:   In addition to the matters disclosed in this Note and Note 1, Regulatory Matters, there are certain other lawsuits and administrative proceedings before various courts and governmental agencies arising in the ordinary course of business to which CMS Energy, Consumers, and certain other subsidiaries of CMS Energy are parties.  These other lawsuits and proceedings may involve personal injury, property damage, contracts, environmental matters, federal and state taxes, rates, licensing, employment, and other matters.  Further, CMS Energy and Consumers occasionally self-report certain regulatory non-compliance matters that may or may not eventually result in administrative proceedings.  CMS Energy and Consumers believe that the outcome of any one of these proceedings will not have a material adverse effect on their consolidated results of operations, financial condition, or liquidity.

 

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3:               FINANCINGS AND CAPITALIZATION

 

Presented in the following table is a summary of major long-term debt transactions during the three months ended March 31, 2014:

 

 

 

Principal

 

 

 

 

 

 

(In Millions)

Interest Rate

 

Issue Date

Maturity Date

Debt issuances

 

 

 

 

 

 

 

CMS Energy

 

 

 

 

 

 

 

Senior notes 1

 

$

250

3.875

%

February 2014

March 2024

Senior notes 1

 

 

300

4.875

 

February 2014

March 2044

Total CMS Energy parent

 

$

550

 

 

 

 

 

In April 2014, CMS Energy used a portion of these proceeds to retire its $125 million 6.875 percent Senior Notes due December 2015.  CMS Energy intends to use the remaining proceeds to retire existing debt and for general corporate purposes.

 

Revolving Credit Facilities:   The following secured revolving credit facilities with banks were available at March 31, 2014:

 

 

 

 

 

 

 

 

 

In Millions

 

 

 

 

 

 

Letters of Credit

 

 

Expiration Date

 

Amount of Facility

 

Amount Borrowed

 

Outstanding

 

Amount Available

CMS Energy

 

 

 

 

 

 

 

 

December 20, 2018 1

 

$

550

 

$

-

 

$

2

 

$

548

Consumers

 

 

 

 

 

 

 

 

 

 

 

 

December 20, 2018 2

 

$

650

 

$

-

 

$

-

 

$

650

September 9, 2014 2

 

 

30

 

 

-

 

 

30

 

 

-

 

Obligations under this facility are secured by Consumers common stock.

 

Obligations under this facility are secured by FMBs of Consumers.

 

Short-term Borrowings:   Under Consumers’ revolving accounts receivable sales program, Consumers may transfer up to $250 million of accounts receivable, subject to certain eligibility requirements.  These transactions are accounted for as short-term secured borrowings.  At March 31, 2014, $250 million of accounts receivable were eligible for transfer.  During the three months ended March 31, 2014, Consumers’ average short-term borrowings totaled $44 million, with a weighted-average annual interest rate of 0.85 percent.

 

Contingently Convertible Securities:   Presented in the following table are the significant terms of CMS Energy’s contingently convertible securities at March 31, 2014:

 

 

 

 

 

Outstanding

 

Adjusted

 

Adjusted

Security

 

Maturity

 

(In Millions)

 

Conversion Price

 

Trigger Price

5.50% senior notes

 

2029

 

$

155

 

$

13.55

 

$

17.61

 

During 20 of the last 30 trading days ended March 31, 2014, the adjusted trigger-price contingencies were met for the contingently convertible senior notes, and as a result, the senior notes are convertible at the

 

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option of the note holders for the three months ending June 30, 2014.  The senior notes, if converted, require CMS Energy to pay cash up to the principal amount of the securities.  Any conversion value in excess of the principal amount can be paid in cash or in shares of CMS Energy’s common stock, at the election of CMS Energy.

 

Presented in the following table are details about conversions of contingently convertible securities during the three months ended March 31, 2014:

 

 

 

 

 

 

 

Weighted-Average

 

Shares

 

 

 

 

 

 

Principal

 

Conversion

 

of Common

 

Cash Paid on

 

 

Conversion

 

Converted

 

Value per $1,000

 

Stock Issued

 

Settlement

 

 

Date

 

(In Millions)

 

of Principal

 

on Settlement

 

(In Millions)

5.50% senior notes due 2029

 

February 2014

 

$

17

 

$

1,968

 

605,531

 

$

17

 

Dividend Restrictions:   Under provisions of the Michigan Business Corporation Act of 1972, as amended, at March 31, 2014, payment of common stock dividends by CMS Energy was limited to $3.6 billion.

 

Under the provisions of its articles of incorporation, at March 31, 2014, Consumers had $747 million of unrestricted retained earnings available to pay common stock dividends to CMS Energy.  Provisions of the Federal Power Act and the Natural Gas Act appear to restrict dividends payable by Consumers to the amount of Consumers’ retained earnings.  Several decisions from FERC suggest that under a variety of circumstances common stock dividends from Consumers would not be limited to amounts in Consumers’ retained earnings.  Any decision by Consumers to pay common stock dividends in excess of retained earnings would be based on specific facts and circumstances and would result only after a formal regulatory filing process.

 

For the three months ended March 31, 2014, CMS Energy received $135 million of common stock dividends from Consumers.

 

Issuance of Common Stock:   In April 2013, CMS Energy entered into a continuous equity offering program permitting it to sell, from time to time in “at the market” offerings, common stock having an aggregate sales price of up to $50 million per program.  Presented in the following table are the transactions that CMS Energy entered into under the program:

 

 

 

Number of

 

Average

 

Proceeds

 

 

Shares Issued

 

Price per Share

 

(In Millions)

March 2014

 

1,070,080

 

$

28.04

 

$

30

 

4:               FAIR VALUE MEASUREMENTS

 

Accounting standards define fair value as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants.  When measuring fair value, CMS Energy and Consumers are required to incorporate all assumptions that market participants would use in pricing an asset or liability, including assumptions about risk.  A fair value hierarchy prioritizes inputs used to measure fair value according to their observability in the market.  The three levels of the fair value hierarchy are as follows:

 

·                  Level 1 inputs are unadjusted quoted prices in active markets for identical assets or liabilities.

 

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·                  Level 2 inputs are observable, market-based inputs, other than Level 1 prices.  Level 2 inputs may include quoted prices for similar assets or liabilities in active markets, quoted prices in inactive markets, and inputs derived from or corroborated by observable market data.

 

·                  Level 3 inputs are unobservable inputs that reflect CMS Energy’s or Consumers’ own assumptions about how market participants would value their assets and liabilities.

 

To the extent possible, CMS Energy and Consumers use quoted market prices or other observable market pricing data in valuing assets and liabilities measured at fair value.  If this information is unavailable, they use market-corroborated data or reasonable estimates about market participant assumptions.  CMS Energy and Consumers classify fair value measurements within the fair value hierarchy based on the lowest level of input that is significant to the fair value measurement in its entirety.

 

A SSETS AND L IABILITIES M EASURED AT F AIR V ALUE ON A R ECURRING B ASIS

 

Presented in the following table are CMS Energy’s and Consumers’ assets and liabilities, by level within the fair value hierarchy, recorded at fair value on a recurring basis:

 

 

 

 

 

 

 

 

 

In Millions

 

 

CMS Energy, including Consumers

 

Consumers

 

 

March 31

 

December 31

 

March 31

 

December 31

 

 

2014

 

2013

 

2014

 

2013

Assets 1

 

 

 

 

 

 

 

 

Cash equivalents

 

$

548

 

$

87

 

$

80

 

$

-

Restricted cash equivalents

 

 

15

 

 

16

 

 

15

 

 

15

CMS Energy common stock

 

 

-

 

 

-

 

 

32

 

 

29

Nonqualified deferred compensation plan assets

 

 

7

 

 

6

 

 

5

 

 

4

DB SERP

 

 

 

 

 

 

 

 

 

 

 

 

Cash equivalents

 

 

2

 

 

-

 

 

1

 

 

-

Mutual funds

 

 

133

 

 

136

 

 

94

 

 

95

Derivative instruments

 

 

 

 

 

 

 

 

 

 

 

 

Commodity contracts

 

 

2

 

 

5

 

 

-

 

 

4

Total

 

$

707

 

$

250

 

$

227

 

$

147

Liabilities 1

 

 

 

 

 

 

 

 

 

 

 

 

Nonqualified deferred compensation plan liabilities

 

$

7

 

$

6

 

$

5

 

$

4

Derivative instruments

 

 

 

 

 

 

 

 

 

 

 

 

Commodity contracts

 

 

-

 

 

1

 

 

-

 

 

-

Total

 

$

7

 

$

7

 

$

5

 

$

4

 

All assets and liabilities were classified as Level 1 with the exception of commodity contracts, which were classified as Level 2 or Level 3, and which were insignificant.

 

Cash Equivalents:   Cash equivalents and restricted cash equivalents consist of money market funds with daily liquidity.  Short-term debt instruments classified as cash equivalents or restricted cash equivalents on the consolidated balance sheets are not included since they are recorded at amortized cost.

 

Nonqualified Deferred Compensation Plan Assets and Liabilities:   The nonqualified deferred compensation plan assets consist of mutual funds, which are valued using the daily quoted NAVs that are publicly available and are the basis for transactions to buy or sell shares in each fund.  CMS Energy and Consumers value their nonqualified deferred compensation plan liabilities based on the fair values of the plan assets, as they reflect what is owed to the plan participants in accordance with their investment

 

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elections.  CMS Energy and Consumers report the assets in other non-current assets and the liabilities in other non-current liabilities on their consolidated balance sheets.

 

DB SERP Assets:   CMS Energy and Consumers value their DB SERP assets using a market approach that incorporates quoted market prices.  The DB SERP cash equivalents consist of a money market fund with daily liquidity.  The DB SERP invests in mutual funds that hold primarily fixed-income instruments of varying maturities.  In order to meet their investment objectives, the funds hold investment-grade debt securities, and may invest a portion of their assets in high-yield securities, foreign debt, and derivative instruments.  CMS Energy and Consumers value these funds using the daily quoted NAVs that are publicly available and are the basis for transactions to buy or sell shares in each fund.  CMS Energy and Consumers report their DB SERP assets in other non-current assets on their consolidated balance sheets.  For additional details about DB SERP securities, see Note 5, Financial Instruments.

 

Derivative Instruments:   CMS Energy and Consumers value their derivative instruments using either a market approach that incorporates information from market transactions, or an income approach that discounts future expected cash flows to a present value amount.  CMS Energy values its exchange-traded derivative contracts based on Level 1 quoted prices and values other derivatives using Level 2 inputs, including commodity forward prices and credit risk factors.  CMS Energy and Consumers have classified certain derivatives as Level 3 since the fair value measurements incorporate assumptions that cannot be observed or confirmed through market transactions.

 

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5:               FINANCIAL INSTRUMENTS

 

Presented in the following table are the carrying amounts and fair values, by level within the fair value hierarchy, of CMS Energy’s and Consumers’ financial instruments that are not recorded at fair value.  The table does not include information on cash, cash equivalents, short-term accounts and notes receivable, short-term investments, and current liabilities since the carrying amounts of these items approximate their fair values because of their short-term nature.  For information about assets and liabilities recorded at fair value and for additional details regarding the fair value hierarchy, see Note 4, Fair Value Measurements.

 

 

 

 

 

 

 

 

 

In Millions

 

 

 

 

 

 

 

March 31, 2014

 

December 31, 2013

 

 

 

 

Fair Value

 

 

 

Fair Value

 

 

Carrying

 

 

 

Level

 

Carrying

 

 

 

Level

 

 

 

Amount

 

Total

 

1

 

2

 

3

 

Amount

 

Total

 

1

 

2

 

3

 

CMS Energy, including Consumers

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Securities held to maturity

 

$

11

 

$

11

 

$

-

 

$

11

 

$

-

 

$

10

 

$

10

 

$

-

 

$

10

 

$

-

 

Notes receivable 1

 

712

 

755

 

-

 

-

 

755

 

683

 

724

 

-

 

-

 

724

 

Long-term debt 2

 

8,181

 

9,047

 

-

 

8,054

 

993

 

7,642

 

8,368

 

-

 

7,406

 

962

 

Consumers

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Long-term debt 3

 

$

4,611

 

$

5,011

 

$

-

 

$

4,018

 

$

993

 

$

4,622

 

$

4,940

 

$

-

 

$

3,978

 

$

962

 

 

Includes current portion of notes receivable of $68 million at March 31, 2014 and $48 million at December 31, 2013.

 

Includes current portion of long-term debt of $645 million at March 31, 2014 and $541 million at December 31, 2013.

 

Includes current portion of long-term debt of $44 million at March 31, 2014 and $43 million at December 31, 2013.

 

Notes receivable consist of EnerBank’s fixed-rate installment loans.  EnerBank estimates the fair value of these loans using a discounted cash flows technique that incorporates market interest rates as well as assumptions about the remaining life of the loans and credit risk.

 

CMS Energy and Consumers estimate the fair value of their long-term debt using quoted prices from market trades of the debt, if available.  In the absence of quoted prices, CMS Energy and Consumers calculate market yields and prices for the debt using a matrix method that incorporates market data for similarly rated debt.  Depending on the information available, other valuation techniques and models may be used that rely on assumptions that cannot be observed or confirmed through market transactions.  CMS Energy includes the value of the conversion features in estimating the fair value of its convertible debt, and incorporates, as appropriate, information on the market prices of CMS Energy common stock.

 

The effects of third-party credit enhancements are excluded from the fair value measurements of long-term debt.  At March 31, 2014 and December 31, 2013, CMS Energy’s long-term debt included $103 million principal amount that was supported by third-party credit enhancements.  This entire principal amount was at Consumers.

 

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Presented in the following table are CMS Energy’s and Consumers’ investment securities classified as available for sale or held to maturity:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

In Millions

 

 

March 31, 2014

 

December 31, 2013

 

 

 

 

Unrealized

 

Unrealized

 

Fair

 

 

 

Unrealized

 

Unrealized

 

Fair

 

 

Cost

 

Gains

 

Losses

 

Value

 

Cost

 

Gains

 

Losses

 

Value

CMS Energy, including Consumers

 

 

 

 

 

 

 

 

 

 

 

 

Available for sale

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

DB SERP

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Mutual funds

 

$

133

 

$

-

 

$

-

 

$

133

 

$

136

 

$

-

 

$

-

 

$

136

Held to maturity

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Debt securities

 

11

 

-

 

-

 

11

 

10

 

-

 

-

 

10

Consumers

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Available for sale

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

DB SERP

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Mutual funds

 

$

94

 

$

-

 

$

-

 

$

94

 

$

95

 

$

-

 

$

-

 

$

95

CMS Energy common stock

 

5

 

27

 

-

 

32

 

5

 

24

 

-

 

29

 

The mutual funds classified as available for sale hold primarily fixed-income instruments of varying maturities.  Debt securities classified as held to maturity consist primarily of mortgage-backed securities and Utah Housing Corporation bonds held by EnerBank.

 

Consumers recognized a gain of $4 million in January 2013 associated with the transfer of shares of CMS Energy common stock to a related charitable foundation.  The gain reflected the excess of fair value over cost of the stock donated and was included in Consumers’ income.

 

6:               NOTES RECEIVABLE

 

Presented in the following table are details of CMS Energy’s and Consumers’ current and non-current notes receivable:

 

 

 

 

 

In Millions

 

 

March 31, 2014

 

December 31, 2013

CMS Energy, including Consumers

 

 

 

 

Current

 

 

 

 

EnerBank notes receivable, net of allowance for loan losses

 

$

68

 

$

48

Other

 

1

 

15

Non-current

 

 

 

 

EnerBank notes receivable, net of allowance for loan losses

 

644

 

635

Total notes receivable

 

$

713

 

$

698

Consumers

 

 

 

 

Current

 

 

 

 

Other

 

$

-

 

$

14

Total notes receivable

 

$

-

 

$

14

 

EnerBank notes receivable are unsecured consumer installment loans for financing home improvements.  EnerBank records its notes receivable at cost, less an allowance for loan losses.

 

The allowance for loan losses is a valuation allowance to reflect estimated credit losses.  The allowance is increased by the provision for loan losses and decreased by loan charge-offs net of recoveries.

 

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Management estimates the allowance balance required by taking into consideration historical loan loss experience, the nature and volume of the portfolio, economic conditions, and other factors.  Loan losses are charged against the allowance when the loss is confirmed, but no later than the point at which a loan becomes 120 days past due.

 

Presented in the following table are the changes in the allowance for loan losses:

 

In Millions

Three Months Ended March 31

 

2014

 

2013

Balance at beginning of period

 

$

5

 

$

5

Charge-offs

 

(2)

 

(1)

Provision for loan losses

 

2

 

1

Balance at end of period

 

$

5

 

$

5

 

Loans that are 30 days or more past due are considered delinquent.  The balance of EnerBank’s delinquent consumer loans was $3 million at March 31, 2014 and $4 million at December 31, 2013.

 

At March 31, 2014 and December 31, 2013, $1 million of EnerBank’s loans had been modified as troubled debt restructurings.

 

7:                RETIREMENT BENEFITS

 

CMS Energy and Consumers provide pension, OPEB, and other retirement benefits to employees under a number of different plans.

 

Presented in the following table are the costs (credits) and other changes in plan assets and benefit obligations incurred in CMS Energy’s and Consumers’ retirement benefits plans:

 

In Millions

 

 

 

Pension

 

OPEB

 

Three Months Ended March 31

 

2014

 

2013

 

2014

 

2013

 

CMS Energy, including Consumers

 

 

 

 

 

 

 

 

 

Net periodic cost (credit)

 

 

 

 

 

 

 

 

 

Service cost

 

$

10

 

$

13

 

$

5

 

$

9

 

Interest expense

 

25

 

24

 

14

 

19

 

Expected return on plan assets

 

(34

)

(32)

 

(22

)

(19

)

Amortization of:

 

 

 

 

 

 

 

 

 

Net loss

 

15

 

24

 

-

 

11

 

Prior service cost (credit)

 

-

 

1

 

(10

)

(5

)

Net periodic cost (credit)

 

$

16

 

$

30

 

$

(13

)

$

15

 

Consumers

 

 

 

 

 

 

 

 

 

Net periodic cost (credit)

 

 

 

 

 

 

 

 

 

Service cost

 

$

10

 

$

13

 

$

5

 

$

9

 

Interest expense

 

24

 

23

 

13

 

18

 

Expected return on plan assets

 

(33

)

(31)

 

(21

)

(18

)

Amortization of:

 

 

 

 

 

 

 

 

 

Net loss

 

14

 

23

 

1

 

11

 

Prior service cost (credit)

 

-

 

1

 

(10

)

(5

)

Net periodic cost (credit)

 

$

15

 

$

29

 

$

(12

)

$

15

 

 

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8:                INCOME TAXES

 

Presented in the following table is a reconciliation of the statutory U.S. federal income tax rate to the effective income tax rate from continuing operations, excluding noncontrolling interests:

 

March 31

 

2014

 

2013

 

CMS Energy, including Consumers

 

 

 

 

 

U.S. federal income tax rate

 

35.0

 %

35.0

 %

Increase (decrease) in income taxes from:

 

 

 

 

 

State and local income taxes, net of federal effect

 

4.9

 

4.9

 

Accelerated flow-through of regulatory tax benefits

 

(5.4

)

-

 

Other, net

 

(0.5

)

(0.2

)

Effective tax rate

 

34.0

 %

39.7

 %

Consumers

 

 

 

 

 

U.S. federal income tax rate

 

35.0

 %

35.0

 %

Increase (decrease) in income taxes from:

 

 

 

 

 

State and local income taxes, net of federal effect

 

4.9

 

4.8

 

Accelerated flow-through of regulatory tax benefits

 

(4.8

)

-

 

Other, net

 

(0.7

)

(0.9

)

Effective tax rate

 

34.4

 %

38.9

 %

 

Prior to 2014, Consumers recognized the income tax benefits associated with the removal costs of plant placed in service before 1993 as payments were made and the tax benefits were flowed through to customers.  In September 2013, the MPSC issued an order authorizing Consumers to flow through to customers the income tax benefits on a straight-line basis over an accelerated period.  This new regulatory treatment, which Consumers implemented in January 2014, will accelerate the return of $211 million of income tax benefits over five years to electric customers and $264 million of income tax benefits over 12 years to gas customers.  For the three months ended March 31, 2014, this new treatment reduced Consumers’ income tax expense by $16 million.

 

In April 2014, the Internal Revenue Service completed its audit of the federal income tax returns of CMS Energy and its subsidiaries for 2010 and 2011.  The audit resulted in no significant adjustments to CMS Energy’s or Consumers’ taxable income or income tax expense.

 

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9:                EARNINGS PER SHARE – CMS ENERGY

 

Presented in the following table are CMS Energy’s basic and diluted EPS computations based on income from continuing operations:

 

In Millions, Except Per Share Amounts

 

Three Months Ended March 31

 

2014

 

2013

 

Income available to common stockholders

 

 

 

 

 

Income from continuing operations available to common stockholders – basic and diluted

 

$

204

 

$

144

 

Average common shares outstanding

 

 

 

 

 

Weighted-average shares – basic

 

266.1

 

263.6

 

Add dilutive contingently convertible securities

 

6.3

 

6.1

 

Add dilutive non-vested stock awards

 

0.6

 

1.2

 

Weighted-average shares – diluted

 

273.0

 

270.9

 

Income from continuing operations per average common share available to common stockholders

 

 

 

 

 

Basic

 

$

0.77

 

$

0.55

 

Diluted

 

0.75

 

0.53

 

 

C ONTINGENTLY C ONVERTIBLE S ECURITIES

 

When CMS Energy has earnings from continuing operations, its contingently convertible securities dilute EPS to the extent that the conversion value of a security, which is based on the average market price of CMS Energy common stock, exceeds the principal value of that security.

 

N ON-VESTED S TOCK A WARDS

 

CMS Energy’s non-vested stock awards are composed of participating and non-participating securities.  The participating securities accrue cash dividends when common stockholders receive dividends.  Since the recipient is not required to return the dividends to CMS Energy if the recipient forfeits the award, the non-vested stock awards are considered participating securities.  As such, the participating non-vested stock awards were included in the computation of basic EPS.  The non-participating securities accrue stock dividends that vest concurrently with the stock award.  If the recipient forfeits the award, the stock dividends accrued on the non-participating securities are also forfeited.  Accordingly, the non-participating awards and stock dividends were included in the computation of diluted EPS, but not basic EPS.

 

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10:       REPORTABLE SEGMENTS

 

Reportable segments consist of business units defined by the products and services they offer.  CMS Energy and Consumers evaluate the performance of each segment based on its contribution to net income available to CMS Energy’s common stockholders.  The reportable segments for CMS Energy and Consumers are:

 

CMS Energy:

 

·                  electric utility, consisting of regulated activities associated with the generation and distribution of electricity in Michigan;

·                  gas utility, consisting of regulated activities associated with the transportation, storage, and distribution of natural gas in Michigan;

·                  enterprises, consisting of various subsidiaries engaging primarily in domestic independent power production; and

·                  other, including EnerBank, corporate interest and other expenses, and discontinued operations.

 

Consumers:

 

·                  electric utility, consisting of regulated activities associated with the generation and distribution of electricity in Michigan;

·                  gas utility, consisting of regulated activities associated with the transportation, storage, and distribution of natural gas in Michigan; and

·                  other, including a consolidated special-purpose entity for the sale of accounts receivable.

 

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Presented in the following tables is financial information by reportable segment:

 

In Millions

 

Three Months Ended March 31

 

2014

 

2013

 

CMS Energy, including Consumers

 

 

 

 

 

Operating revenue

 

 

 

 

 

Electric utility

 

$

1,224

 

$

961

 

Gas utility

 

1,158

 

958

 

Enterprises

 

122

 

44

 

Other

 

19

 

16

 

Total operating revenue – CMS Energy

 

$

2,523

 

$

1,979

 

Consumers

 

 

 

 

 

Operating revenue

 

 

 

 

 

Electric utility

 

$

1,224

 

$

961

 

Gas utility

 

1,158

 

958

 

Total operating revenue – Consumers

 

$

2,382

 

$

1,919

 

CMS Energy, including Consumers

 

 

 

 

 

Net income (loss) available to common stockholders

 

 

 

 

 

Electric utility

 

$

100

 

$

66

 

Gas utility

 

121

 

96

 

Enterprises

 

2

 

4

 

Other

 

(19

)

(22

)

Total net income available to common stockholders – CMS Energy

 

$

204

 

$

144

 

Consumers

 

 

 

 

 

Net income available to common stockholder

 

 

 

 

 

Electric utility

 

$

100

 

$

66

 

Gas utility

 

121

 

96

 

Total net income available to common stockholder – Consumers

 

$

221

 

$

162

 

 

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In Millions

 

 

 

March 31, 2014

 

December 31, 2013

 

CMS Energy, including Consumers

 

 

 

 

 

Plant, property, and equipment, gross

 

 

 

 

 

Electric utility

 

$

11,270

 

$

11,186

 

Gas utility

 

4,896

 

4,843

 

Enterprises

 

116

 

115

 

Other

 

40

 

40

 

Total plant, property, and equipment, gross – CMS Energy

 

$

16,322

 

$

16,184

 

Consumers

 

 

 

 

 

Plant, property, and equipment, gross

 

 

 

 

 

Electric utility

 

$

11,270

 

$

11,186

 

Gas utility

 

4,896

 

4,843

 

Other

 

15

 

15

 

Total plant, property, and equipment, gross – Consumers

 

$

16,181

 

$

16,044

 

CMS Energy, including Consumers

 

 

 

 

 

Total assets

 

 

 

 

 

Electric utility 1

 

$

10,719

 

$

10,487

 

Gas utility 1

 

4,554

 

4,784

 

Enterprises

 

310

 

332

 

Other

 

2,341

 

1,813

 

Total assets – CMS Energy

 

$

17,924

 

$

17,416

 

Consumers

 

 

 

 

 

Total assets

 

 

 

 

 

Electric utility 1

 

$

10,719

 

$

10,487

 

Gas utility 1

 

4,554

 

4,784

 

Other

 

1,039

 

908

 

Total assets – Consumers

 

$

16,312

 

$

16,179

 

 

1   Amounts include a portion of Consumers’ other common assets attributable to both the electric and gas utility businesses.

 

ITEM 3. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK

 

There have been no material changes to market risk as previously disclosed in Part II – Item 7A. Quantitative and Qualitative Disclosures About Market Risk, in the 2013 Form 10-K.

 

ITEM 4. CONTROLS AND PROCEDURES

 

CMS E NERGY

 

Disclosure Controls and Procedures:   CMS Energy’s management, with the participation of its CEO and CFO, has evaluated the effectiveness of its disclosure controls and procedures (as such term is defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) as of the end of the period covered by this report.  Based on such evaluation, CMS Energy’s CEO and CFO have concluded that, as of the end of such period, its disclosure controls and procedures are effective.

 

Internal Control Over Financial Reporting:   There have not been any changes in CMS Energy’s internal control over financial reporting (as such term is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) during the last fiscal quarter that have materially affected, or are reasonably likely to materially affect, its internal control over financial reporting.

 

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C ONSUMERS

 

Disclosure Controls and Procedures:   Consumers’ management, with the participation of its CEO and CFO, has evaluated the effectiveness of its disclosure controls and procedures (as such term is defined in Rules 13a-15(e) and 15d-15(e) under the Exchange Act) as of the end of the period covered by this report.  Based on such evaluation, Consumers’ CEO and CFO have concluded that, as of the end of such period, its disclosure controls and procedures are effective.

 

Internal Control Over Financial Reporting:   There have not been any changes in Consumers’ internal control over financial reporting (as such term is defined in Rules 13a-15(f) and 15d-15(f) under the Exchange Act) during the last fiscal quarter that have materially affected, or are reasonably likely to materially affect, its internal control over financial reporting.

 

PART II. OTHER INFORMATION

 

ITEM 1. LEGAL PROCEEDINGS

 

CMS Energy and Consumers are parties to various lawsuits and regulatory matters in the ordinary course of business.  For information regarding material legal proceedings, including updates to information reported under Part I – Item 3. Legal Proceedings, of the 2013 Form 10-K, see Part I – Item 1. Consolidated Financial Statements (Unaudited) – Notes to the Unaudited Consolidated Financial Statements – Note 1, Regulatory Matters and Note 2, Contingencies and Commitments.

 

ITEM 1A. RISK FACTORS

 

There have been no material changes to the Risk Factors as previously disclosed in Part I – Item 1A. Risk Factors, in the 2013 Form 10-K, which Risk Factors are incorporated herein by reference.

 

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ITEM 2. UNREGISTERED SALES OF EQUITY SECURITIES AND USE OF PROCEEDS

 

(a)        Unregistered Sales of Equity Securities

 

On February 4, 2014 and February 5, 2014, CMS Energy issued a total of 605,531 shares of its common stock and paid $16,685,033 in cash in exchange for $16,685,000 aggregate principal amount of its 5.50 percent Convertible Senior Notes Due 2029.  These notes were tendered for conversion on December 27, 2013 and December 30, 2013, in accordance with the terms and provisions of the Indenture of CMS Energy dated as of September 15, 1992, as supplemented by the Twenty-Second Supplemental Indenture dated as of June 15, 2009.  Such shares of common stock were issued based on the weighted-average conversion value of $1,968 per $1,000 principal amount of convertible note.  The issuance of these shares of common stock was an exchange of securities with existing shareholders and was exempt from registration pursuant to Section 3(a)(9) of the Securities Act of 1933, as amended.

 

(c)        Issuer Repurchases of Equity Securities

 

Presented in the following table are CMS Energy’s repurchases of equity securities for the three months ended March 31, 2014:

 

 

 

 

 

 

 

Total Number of

 

Maximum Number of

 

 

 

 

 

 

 

Shares Purchased as

 

Shares That May Yet Be

 

 

 

Total Number

 

Average

 

Part of Publicly

 

Purchased Under Publicly

 

 

 

of Shares

 

Price Paid

 

Announced Plans or

 

Announced Plans or

 

Period

 

Purchased 1

 

per Share

 

Programs

 

Programs

 

January 1, 2014 to

 

 

 

 

 

 

 

 

 

January 31, 2014

 

243,665

 

$

26.95

 

-

 

-

 

February 1, 2014 to

 

 

 

 

 

 

 

 

 

February 28, 2014

 

-

 

-

 

-

 

-

 

March 1, 2014 to

 

 

 

 

 

 

 

 

 

March 31, 2014

 

-

 

-

 

-

 

-

 

Total

 

243,665

 

$

26.95

 

-

 

-

 

 

1  Common shares were purchased to satisfy the minimum statutory income tax withholding obligation for common shares that have vested under the Performance Incentive Stock Plan.  The value of shares repurchased is based on the market price on the vesting date.

 

ITEM 3. DEFAULTS UPON SENIOR SECURITIES

 

None.

 

ITEM 4. MINE SAFETY DISCLOSURES

 

Not applicable.

 

ITEM 5. OTHER INFORMATION

 

None.

 

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ITEM 6. EXHIBITS

 

See CMS Energy’s and Consumers’ Exhibit Index included as the last part of this report, which is incorporated herein by reference.

 

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Table of Contents

 

SIGNATURES

 

Pursuant to the requirements of the Securities Exchange Act of 1934, each registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized.  The signature for each undersigned company shall be deemed to relate only to matters having reference to such company or its subsidiary.

 

 

 

 

CMS ENERGY CORPORATION

 

 

(Registrant)

 

 

 

 

 

 

 

 

 

Dated: April 24, 2014

By:

/s/ Thomas J. Webb

 

 

 

 

 

Thomas J. Webb

 

 

Executive Vice President and

 

 

Chief Financial Officer

 

 

 

 

 

 

 

 

 

 

 

CONSUMERS ENERGY COMPANY

 

 

(Registrant)

 

 

 

 

 

 

 

 

 

Dated: April 24, 2014

By:

/s/ Thomas J. Webb

 

 

 

 

 

Thomas J. Webb

 

 

Executive Vice President and

 

 

Chief Financial Officer

 

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EXHIBITS

 



Table of Contents

 

CMS ENERGY’S AND CONSUMERS’ EXHIBIT INDEX

 

The agreements included as exhibits to this Form 10-Q filing are included solely to provide information regarding the terms of the agreements and are not intended to provide any other factual or disclosure information about CMS Energy, Consumers, or other parties to the agreements.  The agreements may contain representations and warranties made by each of the parties to each of the agreements that were made exclusively for the benefit of the parties involved in each of the agreements and should not be treated as statements of fact.  The representations and warranties were made as a way to allocate risk if one or more of those statements prove to be incorrect.  The statements were qualified by disclosures of the parties to each of the agreements that may not be reflected in each of the agreements.  The agreements may apply standards of materiality that are different than standards applied to other investors.  Additionally, the statements were made as of the date of the agreements or as specified in the agreements and have not been updated.  The representations and warranties may not describe the actual state of affairs of the parties to each agreement.

 

Additional information about CMS Energy and Consumers may be found in this filing, at www.cmsenergy.com, at www.consumersenergy.com, and through the SEC’s website at www.sec.gov.

 

Exhibits

 

Description

4.1 1

Thirtieth Supplemental Indenture dated as of February 27, 2014 between CMS Energy and The Bank of New York Mellon, as Trustee. (Exhibit 4.1 to Form 8-K filed February 27, 2014 and incorporated herein by reference)

4.2 1

Thirty-First Supplemental Indenture dated as of February 27, 2014 between CMS Energy and The Bank of New York Mellon, as Trustee. (Exhibit 4.2 to Form 8-K filed February 27, 2014 and incorporated herein by reference)

10.1 2

Annual Employee Incentive Compensation Plan for Consumers as amended, effective as of March 14, 2014

10.2 2

CMS Incentive Compensation Plan for CMS Energy and Consumers Energy Officers, as amended effective as of March 14, 2014

12.1

Statement regarding computation of CMS Energy’s Ratios of Earnings to Fixed Charges and Combined Fixed Charges and Preferred Dividends

12.2

Statement regarding computation of Consumers’ Ratios of Earnings to Fixed Charges and Combined Fixed Charges and Preferred Dividends

31.1

CMS Energy’s certification of the CEO pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

31.2

CMS Energy’s certification of the CFO pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

31.3

Consumers’ certification of the CEO pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

31.4

Consumers’ certification of the CFO pursuant to Section 302 of the Sarbanes-Oxley Act of 2002

32.1

CMS Energy’s certifications pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

32.2

Consumers’ certifications pursuant to Section 906 of the Sarbanes-Oxley Act of 2002

101.INS 3

XBRL Instance Document

101.SCH 3

XBRL Taxonomy Extension Schema

101.CAL 3

XBRL Taxonomy Extension Calculation Linkbase

101.DEF 3

XBRL Taxonomy Extension Definition Linkbase

101.LAB 3

XBRL Taxonomy Extension Labels Linkbase

101.PRE 3

XBRL Taxonomy Extension Presentation Linkbase

 

1 Obligations of CMS Energy or its subsidiaries, but not of Consumers

 

2 Management contract or compensatory plan or arrangement.

 

3 The financial information contained in the XBRL-related information is “unaudited” and “unreviewed.”

 


 

Exhibit 10.1

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ANNUAL EMPLOYEE INCENTIVE COMPENSATION

PLAN FOR CONSUMERS ENERGY COMPANY

 

 

 

 

 

 

 

 

 

 

 

 

 

 



 

ANNUAL EMPLOYEE INCENTIVE COMPENSATION

PLAN FOR CONSUMERS ENERGY COMPANY

 

I.                   GENERAL PROVISIONS

 

1.1          Purpose .   The purpose of the Annual Employee Incentive Compensation Plan (“EICP” or “Plan”) is to provide an equitable and competitive level of compensation that will permit Consumers Energy Company (“Company”) and its subsidiaries to attract, retain and motivate their Employees.

 

1.2          Effective Date .   The Plan as described herein is amended and restated effective as of March 14, 2014.

 

1.3          Eligibility .   Regular non-union U.S. employees are eligible for participation in the EICP with the exception of any regular non-union employee who has received a performance rating of under-contributing (“U”) for the Performance Year as documented on their annual performance, evaluation, feedback and development appraisal.

 

II.                   CORPORATE PERFORMANCE GOALS

 

Each year the President and CEO of CMS Energy Corporation will establish the Corporate Performance Goals (“Goals”) for the EICP.  The Goals will consist of between five and fifteen utility specific performance criteria relating to such items as customer service, safety and reliability.  When establishing the Goals for a Performance Year, the President and CEO will include the total number of criteria to be used for the year as well as the award percent for achievement of a specified number of the established criteria.  The specific Goals will be communicated to employees no later than March 31st of the Performance Year.  The Award Formula may include additional adjustments based on financial performance goals relating to CMS Energy Corporation as determined by the Compensation and Human Resources Committee of the Company Board of Directors (the “Committee”).

 

III.                    ANNUAL AWARD FORMULA

 

3.1          Annual Awards .  Annual Awards for each eligible EICP participant will be based upon a standard award as set forth in the table below.  The total amount of a participant’s Annual Award shall be computed according to the annual award formula set forth in Section 3.2.  The Standard Award Amounts are subject to adjustment by the President and CEO of CMS Energy Corporation as indicated by market practices.

 

1



 

 

 

Fulltime

 

Part time

 

 

Standard

 

Standard

Salary

 

Award

 

Award

Grade

 

Amount

 

Amount

 

 

 

 

 

25

 

$18,500

 

 

24

 

$18,250

 

 

23

 

$11,250

 

 

22

 

$11,000

 

 

21

 

$6,750

 

 

20

 

$6,500

 

 

19

 

$6,250

 

 

18

 

$1,000

 

$500

17

 

$875

 

$438

16

 

$750

 

$375

15

 

$675

 

$338

14

 

$600

 

$300

13

 

$575

 

$288

12

 

$550

 

$275

11

 

$525

 

$263

10

 

$500

 

$250

9

 

$475

 

$238

8

 

$450

 

$225

7

 

$425

 

$213

6

 

$400

 

$200

5

 

$375

 

$188

4

 

$350

 

$175

3

 

$325

 

$163

2

 

$300

 

$150

1

 

$275

 

$138

 

3.2          Annual Awards for EICP participants will be calculated and made as follows:

 

Annual Award = Standard Award Amount X Operational Award Level X 50%  Plus Standard Target Amount X Financial Award Level X 50%

 

IV.                     PAYMENT OF ANNUAL AWARDS

 

4.1          Cash Annual Award .   All Annual Awards for a Performance Year will be paid in cash no later than March 15 th  of the calendar year following the Performance Year provided that the Annual Award for a particular Performance Year has not been deferred voluntarily pursuant to Section 4.2.  The amounts required by law to be withheld for income and employment taxes will be deducted from the Annual Award payments.  All Annual Awards become the obligation of the company on whose payroll the Employee is enrolled at the time the Committee makes the Annual Award.

 

2



 

4.2          Deferred Annual Awards.

 

(a)              The payment of all or any portion (rounded to an even multiple of 10%) of a cash Annual Award may be deferred voluntarily at the election of individual participants in salary grades 19-25.  Any such deferral will be net of any applicable FICA or FUTA taxes.  A separate irrevocable election must be made prior to the Performance Year.  Any Annual Award made by the Committee after termination of employment of a participant or retirement of a participant will be paid in accordance with any deferral election made within the enrollment period.

 

(b)             At the time the participant makes a deferral election he or she must select the payment options (including the Payment Event as set forth at (c) below and the Payment Term as set forth at (d) below) applicable to the Deferred Annual Award for the Performance Year, as well as any earnings or income attributable to such amounts.  The payment options elected will apply only to that year’s Deferred Annual Award and will not apply to any previous Deferred Annual Award or to any subsequent Deferred Annual Award.  Any participant who elects to defer all or a portion of an Annual Award and who fails to select a Payment Event or a Payment Term will be presumed to have elected a Payment Event of Separation from Service in accordance with paragraph (c)(i) below and/or a Payment Term of a single sum.

 

(c)              The Payment Event elected can be either:

 

(i)                 Separation from Service for any reason other than death.  Payment will be made, or begin, in the later of: (1) January of the year following the year of the Separation from Service; or (2) the seventh month after the month of the Separation from Service.  Later installments, if any, will be paid in January of the succeeding years;

 

(ii)             Payment upon attainment of a date certain that is more than 1 year after the last day of the applicable Performance Year.  Later installments, if any, will be paid in January of the succeeding years; or

 

(iii)         The first to occur of (i) or (ii) above.

 

(d)            Payment Term.  At the time of electing to defer an Annual Award, the participant must also elect how he or she wishes to receive any such payment from among the following options (the participant may elect a separate Payment Term for each Payment Event elected):

 

(i)                 Payment in a single sum upon occurrence of the Payment Event.

 

(ii)             Payment of a series of annual installment payments over a period from two (2) years to fifteen (15) years following the Payment Event.  Each

 

3



 

installment payment shall be equal to a fractional amount of the balance in the account the numerator of which is one and the denominator of which is the number of installment payments remaining.  Although initially such installment payments will be identical, actual payments may vary based upon investment performance.  For example, a series of 5 installment payments will result in a payout of 1/5 of the account balance in the first installment, ¼ of the account balance (including investment gains or losses since the first installment date) in the second installment, etc.

 

(e)              Changes to Payment Options.  Once a payment option has been elected, subsequent changes which would accelerate the receipt of benefits from the Plan are not permitted, except that the Plan Administrator, which is the Benefit Administration Committee as defined in the Savings Plan for Employees of Consumers Energy and other CMS Energy Companies (the “Savings Plan”), may at its discretion accelerate payments to the extent permitted by Code Section 409A and applicable regulations.  A subsequent election to change the payment options related to a Payment Event, in order to delay a payment or to change the form of a payment, can only be made when all of the following conditions are satisfied:

 

(i)             such election may not take effect until at least 12 months after the date on which the election is made;

 

(ii)          the payment(s) with respect to which such election is made is deferred for a period of not less than 5 years from the date such payment would otherwise have been made (or, in the case of installment payments under Section 4.2(d)(ii), 5 years from the date the first installment was scheduled to be paid); and

 

(iii)     such election must be made not less than 12 months before the date the payment was previously scheduled to be made (or, in the case of installment payments under Section 4.2(d)(ii), 12 months before the first installment was scheduled to be paid), if the participant’s previous commencement date was a specified date.

 

(f)               Investments. At the time of electing to voluntarily defer payment, the participant must elect how the Deferred Annual Award will be treated by the Company or Subsidiary.  To the extent that any amounts deferred are placed in a rabbi trust with an independent record keeper, a participant who has previously deferred amounts under this Plan will automatically have his or her existing investment profile apply to this deferral also.  All determinations of the available investment options by the Plan Administrator are final and binding upon participants.  A participant may change the investment elections at any time prior to the payment of the benefit, subject to any restrictions imposed by the Plan Administrator, the plan record keeper or by any applicable laws and regulations.  A participant not making an election will have amounts deferred

 

4



 

treated as if in a Lifestyle Fund as defined in the Savings Plan applicable to the participant’s age 65, rounded up, or such other investment as determined by the Plan Administrator.  All gains and losses will be based upon the performance of the investments selected by the participant from the date the deferral is first credited to the nominal account.  If the Company elects to fund its obligation as discussed below, then investment performance will be based on the balance as determined by the record keeper.

 

(g)             The amount of any Deferred Annual Award is to be satisfied from the general corporate funds of the company on whose payroll the Plan participant was enrolled prior to the payout beginning and are subject to the claims of general creditors of the company.  This is an unfunded nonqualified deferred compensation plan.  To the extent the Company elects to place funds with a trustee to pay its future obligations under this Plan, such amounts are placed for the convenience of the Company or Subsidiary, remain the property of the Company or Subsidiary and the participant shall have no right to such funds until properly paid in accordance with the provisions of this Plan.  For administrative ease and convenience, such amounts may be referred to as participant accounts, but as such are a notional account only and are not the property of the participant.  Such amounts remain subject to the claims of the creditors of the Company or Subsidiary.

 

(h)   Payment in the Event of an Unforeseeable Emergency. The participant may request that payments commence immediately upon the occurrence of an Unforeseeable Emergency as that term is defined in Code Section 409A and any applicable regulations.  Generally, an unforeseeable emergency is a severe financial hardship resulting from an illness or accident of the participant or the participant’s spouse or dependent, loss of the participant’s property due to casualty, or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the participant.  A distribution on account of unforeseeable emergency may not be made to the extent that such emergency is or may be relieved through reimbursement or compensation from insurance or otherwise, by liquidation of the participant’s assets (without causing severe financial hardship), or by cessation of deferrals under this arrangement, the Savings Plan or other arrangements. Distributions because of an unforeseeable emergency shall not exceed the amount permitted under Section 409A and accordingly are limited to the amount reasonably necessary to satisfy the emergency need (after use of insurance proceeds, liquidation of assets, etc.) plus an amount to pay taxes reasonably anticipated as a result of the distribution. In the event any payment is made due to an unforeseeable emergency, all deferral elections for the current Performance Year will cease and the participant will not be eligible to make any deferral elections under this Plan for the following Performance Year.  For any participant receiving a hardship withdrawal under the Savings Plan, all deferral elections under this Plan for the current Performance Year will cease and the participant will not be

 

5



 

eligible to make any deferral elections under this Plan for the following Performance Year.

 

4.3          Payment in the Event of Death .

 

(a)              A participant may name the beneficiary of his or her choice on a beneficiary form provided by the Company or record keeper, and the beneficiary shall receive, within 90 days of the participant’s death, in a single sum, all payments credited to the participant in the event that the participant dies prior to receipt of Deferred Annual Awards.  If a beneficiary is not named or does not survive the participant, the payment will be made to the participant’s estate. In no event may any recipient designate a year of payment for an amount payable upon the death of the participant.

 

(b)             A participant may change beneficiaries at any time, and the change will be effective as of the date the plan record keeper or the Company accepts the form as complete.  The Company will not be liable for any payments made before receipt and acceptance of a written beneficiary request.

 

V.                     CHANGE OF STATUS

 

Payments in the event of a change in status will not be made if no Annual Awards are made for the Performance Year.

 

5.1          Pro-Rata Annual Awards .   A new EICP participant, whether hired or promoted to the position, or an EICP employee promoted to a higher salary grade during the Performance Year will receive a pro rata Annual Award based on the percentage of the Performance Year in which the employee is in a particular salary grade.  An EICP participant whose salary grade has been lowered, but whose employment is not terminated during the Performance Year will receive a pro rata Annual Award based on the percentage of the Performance Year in which the employee is in a particular salary grade.  Awards will also be prorated for any change in full time or part time work status.

 

5.2          Termination .   An EICP participant whose employment is terminated pursuant to a violation of the Company code of conduct or other corporate policies will not be considered for or receive an Annual Award .

 

5.3          Resignation .  An EICP participant who resigns prior to payment (during or after a Performance Year) will not be eligible for an Annual Award.  If the resignation is due to reasons such as a downsizing or reorganization, or the ill health of the employee or ill health in the immediate family, the employee may petition the Plan Administrator and may be considered, in the discretion of the Plan Administrator, for a pro rata Annual Award.  The Plan Administrator’s decision to approve or deny the request for a pro rata Annual Award shall be final.

 

6



 

5.4          Death, Disability, Retirement, Leave of Absence .   An EICP participant whose status as an active employee is changed during the Performance Year due to death, Disability, Retirement, or Leave of Absence (as determined by the Plan Administrator) will receive a pro rata Annual Award.  An EICP participant whose employment is terminated following the Performance Year but prior to payment due to death, Disability or Retirement will continue to be eligible for an Annual Award for the Performance Year.  Any such payment or Annual Award payable due to the death of the EICP participant will be made to the named beneficiary, or if no beneficiary is named or if the beneficiary doesn’t survive the EICP participant, then to the EICP participant’s estate no later than March 15 following the applicable Performance Year.  Notwithstanding the above, an EICP participant who retires, is on disability or leave of absence and who becomes employed by a competitor of CMS Energy or Consumers Energy or their subsidiaries or affiliates prior to award payout will forfeit all rights to an Annual Award, unless prior approval of such employment has been granted by the Committee.  A “competitor” shall mean an entity engaged in the business of (1) selling (a) electric power or natural gas at retail or wholesale within the State of Michigan or (b) electric power at wholesale within the market area in which an electric generating plant owned by a subsidiary or affiliate of CMS Enterprises is located or (2) developing an electric generating plant within the State of Michigan or a market area in which an electric generating plant owned by a subsidiary.

 

5.5          Payment Following Leave of Absence.   Payment of an award for an EICP participant who is on leave of absence or Family Medical Leave Act leave at the time of payment shall be delayed until the participant has returned to work and then shall be paid in the payroll period that is within an administratively reasonable time after returning to work, but no later than March 15 of the year following the year the participant has returned to work.

 

 

 

VI.                     MISCELLANEOUS

 

6.1          Impact on Benefit Plans .   Payments made under the Plan will be considered as earnings for the Supplemental Executive Retirement Plans (Salary Grades 24 and 25) but not for purposes of the Employees’ Savings Plan, Pension Plan, or other employee benefit programs.

 

6.2          Impact on Employment .  Neither the adoption of the Plan nor the granting of any Annual Award under the Plan will be deemed to create any right in any individual to be retained or continued in the employment of the Company or any corporation within the Company’s control group.

 

6.3          Termination or Amendment of the Plan .   The Company may amend or terminate the Plan at any time.  Upon termination, any Deferred Annual Award accrued under the Plan and vested will remain in the Plan and be paid out in accordance with the Payment Elections previously selected.  The Plan Administrator is authorized to

 

7



 

make any amendments that are deemed necessary or desirable to comply with any applicable laws, regulations or orders or as may be advised by counsel or to clarify the terms and operation of the Plan.  The Company may terminate the Plan and accelerate any benefits under the Plan, at its discretion, if it acts consistent in all manners with the requirements of Code Section 409A and any applicable regulations with respect to when a terminated plan may accelerate payment to a participant.

 

6.4          Governing Law .  The Plan will be governed and construed in accordance with the laws of the State of Michigan.

 

6.5          Dispute Resolution .  Any disputes related to the Plan must be brought to the Plan Administrator.  The Plan Administrator is granted full discretionary authority to apply the terms of the Plan, make administrative rulings, interpret the Plan and make any other determinations with respect to the Plan.  If the Plan Administrator makes a determination and the participant disagrees with or wishes to appeal the determination, the participant must appeal the decision to the Plan Administrator, in writing and not later than 60 days from when the determination was mailed to the participant.  If the participant does not timely appeal the original determination, the participant has no further rights under the Plan with respect to the matter presented in the claim.  If the participant appeals the original determination and that appeal does not result in a mutually agreeable resolution, then the dispute shall be subject to final and binding arbitration before a single arbitrator selected by the parties to be conducted in Jackson, Michigan, provided the participant makes such request for arbitration in writing within 30 days of the final decision by the Plan Administrator.  The arbitration will be conducted and finished within 90 days of the selection of the arbitrator.  The parties shall share equally the cost of the arbitrator and of conducting the arbitration proceeding, but each party shall bear the cost of its own legal counsel and experts and other out-of-pocket expenditures.  The arbitrator must use an arbitrary and capricious standard of review when considering any determinations and findings by the Plan Administrator.

 

VII.                   AMENDMENT TO REFLECT CODE SECTION 409A

 

7.1          Code Section 409A.   This Plan has been amended, effective as of January 1, 2005, to comply with the requirements of Section 409A of the Code.  To the extent counsel determines additional amendments may be reasonable or desirable in order to comply with Code Section 409A, and any other applicable rules, laws and regulations, such changes shall be authorized with the approval of the Plan Administrator.

 

8


Exhibit 10.2

 

 

 

 

 

 

 

 

 

 

 

 

 

 

CMS INCENTIVE COMPENSATION PLAN

FOR CMS ENERGY AND CONSUMERS ENERGY OFFICERS

 

 

 

 

 

 

 

 

 

 

 

 

 

 



 

CMS INCENTIVE COMPENSATION PLAN FOR CMS ENERGY AND CONSUMERS ENERGY OFFICERS

 

I.                            GENERAL PROVISIONS

 

1.1                             Purpose .   The purpose of the CMS Incentive Compensation Plan (“CMSICP” or “Plan”) is to:

 

(a)                                Provide an equitable and competitive level of compensation that will permit CMS Energy and Consumers Energy to attract, retain and motivate Officers.

 

(b)                               No payments to Officers in the form of incentive compensation shall be made unless pursuant to a plan approved by the Compensation and Human Resources Committee of the Board of Directors of CMS Energy and after express approval of the Committee.  This plan shall be administered by the President and CEO of CMS Energy and the Benefit Administration Committee.

 

1.2                             Effective Date .  The initial effective date of the Plan is January 1, 2004.  The Plan, as described herein, is amended and restated effective as of March 14, 2014.

 

1.3                             Definitions .  As used in this Plan, the following terms have the meaning described below:

 

(a)                          “Annual Award” means an annual incentive award granted under the CMSICP.

 

(b)                         “Base Salary” means the base salary on January 1 of a Performance Year, except as impacted by a Change in Status as defined in Article V.  For purposes of the Plan, an Officer’s Base Salary must be subject to annual review and annual approval by the Committee.

 

(c)                          “Benefit Administration Committee” means the committee as appointed by the Chief Executive Officer and Chief Financial Officer of CMS Energy Corporation to act as the Plan Administrator in accordance with authority granted by the Board of Directors.

 

(d)                        “CMS Energy” means CMS Energy Corporation.

 

(e)                          “Code” means the Internal Revenue Code of 1986, as amended.

 

(f)                           “Code Section 162(m) Employee” means a “covered employee” as that term is defined under Code Section 162(m).  Generally, this is the CEO and the three highest paid executive officers (other than the CEO and the CFO) of the corporation.

 

1



 

(g)                         “Committee” means the Compensation and Human Resources Committee of the Board of Directors of CMS Energy.

 

(h)                         “Company” means CMS Energy.

 

(i)                             “Consumers Energy” means Consumers Energy Company, a wholly owned subsidiary of CMS Energy.

 

(j)                             “Deferred Annual Award” means the amount deferred pursuant to Section 4.2.

 

(k)                         “Disability” means that a participant has terminated employment with the Company or Consumers Energy and is disabled, as that term is defined under Code Section 409A and any applicable regulations.

 

(l)                             “Leave of Absence” for purposes of this Plan means a leave of absence that has been approved by the Company.

 

(m)                     “Officer” means a United States of America employee of the Company or Consumers Energy in Salary Grade “E-3” or higher.

 

(n)                         “Payment Event” means the time at which a Deferred Annual Award may be paid pursuant to Section 4.2.

 

(o)                         “Payment Term” means the length of time for payment of a Deferred Annual Award under Section 4.2.

 

(p)                         “Pension Plan” means the Pension Plan for Employees of Consumers Energy and Other CMS Energy Companies.

 

(q)                         “Performance Goals” are the factors used by the Committee (on an absolute or relative basis) to establish goals to track business measures.  To the extent necessary for an award to be qualified performance-based compensation under Code Section 162(m) and the regulations thereunder, the Committee shall use one or more of the following business criteria, which may be based on corporate-wide or subsidiary, division, operating unit or individual measures:   net earnings; operating earnings or income; earnings growth; net income; cash flow (including operating cash flow, free cash flow, discounted cash flow return on investment, and cash flow in excess of cost of capital); earnings per share; earnings per share growth; stock price; total shareholder return; absolute and/or relative return on common shareholders equity; return on shareholders equity; return on capital; return on assets; economic value added (income in excess of cost of capital); independent customer satisfaction studies or indices; expense reduction; sales; or ratio of operating expenses to operating revenues.  In addition, the Annual Incentive Plan may incorporate certain utility

 

2



 

operating parameters such as safety, reliability and customer service.  The established Performance Goals may be applied on a pre- or post-tax basis and may be adjusted to include or exclude objectively determinable components of any Performance Goal, including, without limitation, special charges such as restructuring or impairment charges, debt refinancing costs, extraordinary or noncash items, unusual, nonrecurring or one-time events affecting the Corporation or its financial statements or changes in law or accounting principles (each an “Adjustment Event”). In the sole discretion of the Committee, unless such action would cause an Award to a Code Section 162(m) Employee to fail to qualify as qualified performance-based compensation under Code Section 162(m), the Committee may amend or adjust the Performance Goal or other terms and conditions of an outstanding Award in recognition of any Adjustment Event.

 

 

(r)                            “Performance Year” means the calendar year prior to the year in which an Annual Award is made by the Committee.

 

(s)                           “Plan Administrator” for Officer participants means the President and Chief Executive Officer of CMS Energy, under the general direction of the Committee and only to the extent permitted by Code Section 162(m).  For all other participants and for purposes of administering Deferred Amounts under Section 4.2, the Plan Administrator is the Benefits Administration Committee appointed by the Chief Executive Officer and the Chief Financial Officer as authorized by the Board of Directors.

 

(t)                            “Retirement” means that a Plan participant is no longer an active Officer and qualifies for a retirement benefit other than a deferred vested retirement benefit under the Pension Plan.  For a participant ineligible for coverage under the Pension Plan and covered instead under the Defined Company Contribution Plan, retirement occurs when there is a Separation from Service on or after age 55 with 5 or more years of service.

 

(u)                         “Separation from Service” means an Officer retires or otherwise has a separation from service from the Company as defined under Code Section 409A and any applicable regulations.  The Plan Administrator will determine, consistent with the requirements of Code Section 409A and any applicable regulations, to what extent a person on a leave of absence, including on paid sick leave pursuant to Company policy, has incurred a Separation from Service.  Notwithstanding the above, a Separation from Service will occur consistent with the Regulation 1.409A-1(h) when it is reasonably anticipated that the level of service provided by the Officer will be no more than 45% of the average level of bona fide service performed by the Officer over the immediately preceding 36 month period.

 

3



 

(v)                         “Subsidiary” means any direct or indirect subsidiary of the Company.

 

1.4                             Eligibility .   Officers of CMS Energy and/or Consumers Energy who do not participate in a broad based incentive plan contingent upon objectives and performance unique to the Officers’ Subsidiary, affiliate, site and/or business unit, are eligible for participation in the CMSICP. An individual listed on the Company payroll records as a contract employee is not eligible for this Plan.

 

1.5                             Administration of the Plan .

 

(a)                              Subject to Code Section 162(m), the Plan is administered by the President and Chief Executive Officer of CMS Energy under the general direction of the Committee.

 

(b)                             Each year, normally in January, but no later than March 30 th  of the Performance Year, the Committee will approve the established Performance Goals for the Performance Year.

 

(c)                              The Committee, no later than March 1st of the calendar year following the Performance Year, will review for approval proposed Annual Awards for the total of all CMSICP Officer participants, as recommended by the President and CEO of CMS Energy.  All proposed Annual Awards shall be approved by the Committee.  Before the payment of any Annual Awards, the Company’s outside auditors and the Committee will certify in writing that the established Performance Goals were in fact satisfied in accordance with Code Section 162(m).

 

(d)                            The Committee reserves the right to modify the established Performance Goals with respect to unforeseeable circumstances or otherwise exercise discretion with respect to proposed Annual Awards as it deems necessary to maintain the spirit and intent of the CMSICP, provided that such discretion will be to decrease or eliminate, not increase, Annual Awards in the case of any Code Section 162(m) Employee.  The Committee also reserves the right in its discretion to not pay Annual Awards for a Performance Year.  All decisions of the Committee are final.

 

II.                             CORPORATE PERFORMANCE GOALS

 

2.1                             In General .   Each year, the Committee uses Performance Goals to determine the Annual Award measures.  A table shall be created by the Compensation Committee for the current year Performance Goals.

 

2.2                             Plan Performance Factor.   The plan performance factor used to calculate an Annual Award is based on the results of the corporate established Performance Goals and is capped at two times the standard award amount.  The Plan

 

4



 

Performance Factor is established in a table relating specific performance results to specific plan Performance Goals. This table shall be created by the Committee for each Performance Year.

 

III.                            ANNUAL AWARD FORMULA

 

3.1                             Annual Awards .  Annual Awards for each eligible Officer will be based upon a percentage of the Officer’s Base Salary for the Performance Year times the Plan performance factor for the year as determined under 2.2 above.  The standard award percentage for each eligible Officer will be approved annually by the Committee for each Performance Year. The maximum amount that can be awarded under this Plan for any Code Section 162(m) Employee will not exceed $2.5 Million in any one Performance Year.  The total amount of a CMSICP participant Officer’s Annual Award shall be computed according to the annual award formula set forth in Section 3.2.  An Officer’s standard award amount is equal to the Officer’s Annual Award computed using a plan performance factor of 100%.

 

 

3.2                             Calculation of Award.   Annual Awards for Officer CMSICP participants will be calculated and made as follows:

 

Annual Award = Base Salary times

Standard Award Percentage times Plan Performance Factor

 

In addition, each Annual Award for Officers of Consumers Energy Company may be modified based on the results achieved for the Consumers Energy Annual Employee Incentive Compensation Plan.  If the Consumers Energy Annual Employee Incentive Compensation Plan does not pay out an operational award for the same Performance Year, then the Annual Award, if any, earned under this Plan will be reduced by 10%.  If the Consumers Energy Annual Employee Incentive Compensation Plan pays out an operational award for the same Performance Year based on achievement of some of the established objectives, but not at the maximum award percentage, then there is no modification of awards under this Plan.  If however, the Consumers Energy Annual Employee Incentive Compensation Plan pays out an operational award at the maximum award percentage for the same Performance Year based on achievement of the established objectives, then the Annual Award, if any, earned under this Plan will be increased by up to 10%, provided, however, that no such increase will cause the Annual Award to exceed the maximum of two times the standard award amount, or exceed the maximum payout for a Code Section 162(m) Employee.

 

IV .                           PAYMENT OF ANNUAL AWARDS

 

5



 

4.1                             Cash Annual Award .   All Annual Awards for a Performance Year will be paid in cash after certification by the outside auditors of the Company and the Committee that the established Performance Goals have been satisfied, but not later than March 15 th  of the calendar year following the Performance Year provided that the Annual Award for a particular Performance Year has not been deferred voluntarily pursuant to Section 4.2. The amounts required by law to be withheld for income and employment taxes will be deducted from the Annual Award payments.  All Annual Awards become the obligation of the company on whose payroll the Officer is enrolled at the time the Committee makes the Annual Award.

 

4.2                             Deferred Annual Awards.

 

(a)                                The payment of all or any portion (rounded to an even multiple of 10%) of a cash Annual Award may be deferred voluntarily at the election of an individual Plan participant in salary grades E-3 – E-9.  Any such deferral will be net of any applicable FICA or FUTA taxes.  A separate irrevocable election must be made prior to the Performance Year.  Any Annual Award made by the Committee after termination of employment of a participant or retirement of a participant will be paid in accordance with any deferral election made within the enrollment period.

 

(b)                               At the time the participant makes a deferral election he or she must select the payment options (including the Payment Event as set forth at (c) below and the Payment Term as set forth at (d) below) applicable to the Deferred Annual Award for the Performance Year, as well as any earnings or income attributable to such amounts.  The payment options elected will apply only to that year’s Deferred Annual Award and will not apply to any previous Deferred Annual Award or to any subsequent Deferred Annual Award.  Any participant who elects to defer all or a portion of an Annual Award and who fails to select a Payment Event or a Payment Term will be presumed to have elected a Payment Event of Separation from Service in accordance with paragraph (c)(i) below and/or a Payment Term of a single sum.

 

(c)                                The Payment Event elected can be either:

 

(i)                                 Separation from Service for any reason other than death.  Payment will be made, or begin, in the later of: (1) January of the year following the year of the Separation from Service; or (2) the seventh month after the month of the Separation from Service.  Later installments, if any, will be paid in January of the succeeding years;

 

(ii)                             Payment upon attainment of a date certain that is more than 1 year after the last day of the applicable Performance Year.  Later

 

6



 

installments, if any, will be paid in January of the succeeding years ; or

 

(iii)        The earlier of (i) or (ii) above.

 

(d)                              Payment Term.  At the time of electing to defer an Annual Award, the participant must also elect how he or she wishes to receive any such payment from among the following options (the participant may elect a separate Payment Term for each Payment Event elected):

 

(i)        Payment in a single sum upon occurrence of the Payment Event.

 

(ii)       Payment of a series of annual installment payments over a period from two (2) years to fifteen (15) years following the Payment Event.  Each installment payment shall be equal to a fractional amount of the balance in the account the numerator of which is one and the denominator of which is the number of installment payments remaining.  Although initially such installment payments will be identical, actual payments may vary based upon investment performance.  For example, a series of 5 installment payments will result in a payout of 1/5 of the account balance in the first installment, 1/4 of the account balance (including investment gains or losses since the first installment date) in the second installment, etc.

 

(e)                            Changes to Payment Options.  Once a payment option has been elected, subsequent changes which would accelerate the receipt of benefits from the Plan are not permitted, except that the Plan Administrator may at its discretion accelerate payments to the extent permitted by Code Section 409A and applicable regulations.  A subsequent election to change the payment options related to a Payment Event, in order to delay a payment or to change the form of a payment, can only be made when all of the following conditions are satisfied:

 

(i)                                 such election may not take effect until at least 12 months after the date on which the election is made;

 

(ii)                             the payment(s) with respect to which such election is made is deferred for a period of not less than 5 years from the date such payment would otherwise have been made (or, in the case of installment payments under Section 4.2(d)(ii), 5 years from the date the first installment was scheduled to be paid); and

 

(iii)                         such election must be made not less than 12 months before the date the payment was previously scheduled to be made (or, in the case of installment payments under Section 4.2(d)(ii), 12 months before

 

7



 

the first installment was scheduled to be paid), if the participant’s previous commencement date was a specified date.

 

(f)                                 Investments. At the time of electing to voluntarily defer payment, the participant must elect how the Deferred Annual Award will be treated by the Company or Consumers Energy.  To the extent that any amounts deferred are placed in a rabbi trust with an independent record keeper, a participant who has previously deferred amounts under this Plan will automatically have his or her existing investment profile apply to this deferral also.  All determinations of the available investment options by the Plan Administrator are final and binding upon participants.  A participant may change the investment elections at any time prior to the payment of the benefit, subject to any restrictions imposed by the Plan Administrator, the plan record keeper or by any applicable laws and regulations.  A participant not making an election will have amounts deferred treated as if in a Lifestyle Fund under the Savings Plan for Employees of Consumers Energy and other CMS Energy Companies (the “Savings Plan”) applicable to the participant’s age 65, rounded up, or such other investment as determined by the Benefit Administration Committee.  All gains and losses will be based upon the performance of the investments selected by the participant from the date the deferral is first credited to the nominal account.  If the Company elects to fund its obligation as discussed below, then investment performance will be based on the balance as determined by the record keeper.

 

(g)                               The amount of any Deferred Annual Award is to be satisfied from the general corporate funds of the company on whose payroll the Plan participant was enrolled prior to the payout beginning and are subject to the claims of general creditors.  This is an unfunded nonqualified deferred compensation plan.  To the extent the Company or Consumers Energy, as applicable, elects to place funds with a trustee to pay its future obligations under this Plan, such amounts are placed for the convenience of the Company or Consumers Energy, remain the property of the Company or Consumers Energy and the participant shall have no right to such funds until properly paid in accordance with the provisions of this Plan.  For administrative ease and convenience, such amounts may be referred to as participant accounts, but as such are a notional account only and are not the property of the participant.  Such amounts remain subject to the claims of the creditors of the Company or Consumers Energy.

 

(h)                               Payment in the Event of an Unforeseeable Emergency. The participant may request that payments commence immediately upon the occurrence of an unforeseeable emergency as that term is defined in Code Section 409A and any applicable regulations.  Generally, an unforeseeable emergency is a severe financial hardship resulting from an illness or accident of the participant or the participant’s spouse or dependent, loss of the

 

8



 

participant’s property due to casualty, or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the participant.  A distribution on account of unforeseeable emergency may not be made to the extent that such emergency is or may be relieved through reimbursement or compensation from insurance or otherwise, by liquidation of the participant’s assets (without causing severe financial hardship), or by cessation of deferrals under this arrangement, the Savings Plan or other arrangements. Distributions because of an unforeseeable emergency shall not exceed the amount permitted under Section 409A and accordingly are limited to the amount reasonably necessary to satisfy the emergency need (after use of insurance proceeds, liquidation of assets, etc.) plus an amount to pay taxes reasonably anticipated as a result of the distribution. In the event any payment is made due to an unforeseeable emergency, all deferral elections for the current Performance Year will cease and the participant will not be eligible to make any deferral elections under this Plan for the following Performance Year.  For any participant receiving a hardship withdrawal under the Savings Plan, all deferral elections under this Plan for the current Performance Year will cease and the participant will not be eligible to make any deferral elections under this Plan for the following Performance Year.

 

4.3                             Payment in the Event of Death .

 

(a)                            A participant may name the beneficiary of his or her choice on a beneficiary form provided by the Company or record keeper, and the beneficiary shall receive, within 90 days of the participant’s death, in a single sum, all payments credited to the participant in the event that the participant dies prior to receipt of Deferred Annual Awards.  If a beneficiary is not named or does not survive the participant, the payment will be made to the participant’s estate. In no event may any recipient designate a year of payment for an amount payable upon the death of the participant.

 

(b)                               A participant may change beneficiaries at any time, and the change will be effective as of the date the plan record keeper or Company accepts the form as complete.  Neither the Company nor Consumers Energy will be liable for any payments made before receipt and acceptance of a written beneficiary request.

 

V.                           CHANGE OF STATUS

 

Payments in the event of a change in status will not be made if no Annual Awards are made for the Performance Year.

 

9



 

5.1                          Pro-Rata Annual Awards .   A new Officer participant, whether hired or promoted to the position, or an Officer promoted to a higher salary grade during the Performance Year will receive a pro rata Annual Award based on the percentage of the Performance Year in which the Officer is in a particular salary grade.  An Officer participant whose salary grade has been lowered, but whose employment is not terminated during the Performance Year will receive a pro rata Annual Award based on the percentage of the Performance Year in which the Officer is in a particular salary grade.

 

5.2                          Termination .   An Officer participant whose employment is terminated pursuant to a violation of the Company code of conduct or other corporate policies will not be considered for or receive an Annual Award .

 

5.3        Resignation .  An Officer participant who resigns prior to payment (during or after a Performance Year) will not be eligible for an Annual Award.  If the resignation is due to reasons such as a downsizing or reorganization, or the ill health of the Officer or ill health in the immediate family, the Officer may petition the Plan Administrator and may be considered, in the discretion of the Plan Administrator, for a pro rata Annual Award.  The Plan Administrator’s decision to approve or deny the request for a pro rata Annual Award shall be final.

 

5.4                             Death, Disability, Retirement, Leave of Absence.   An Officer participant whose status as an active employee is changed during the Performance Year due to death, Disability, Retirement, or Leave of Absence will receive a pro rata Annual Award.  An Officer participant whose employment is terminated following the Performance Year but prior to payment due to death, Disability or Retirement will continue to be eligible for an Annual Award for the Performance Year.  Any such payment or Annual Award payable due to the death of the Officer participant will be made to the named beneficiary, or if no beneficiary is named or if the beneficiary doesn’t survive the Officer participant, then to the Officer participant’s estate no later than March 15 following the applicable Performance Year.  Notwithstanding the above, an Officer participant who retires, is on Disability or Leave of Absence and who becomes employed by a competitor of CMS Energy or Consumers Energy or their subsidiaries or affiliates prior to award payout will forfeit all rights to an Annual Award, unless prior approval of such employment has been granted by the Committee.  A “competitor” shall mean an entity engaged in the business of (1) selling (a) electric power or natural gas at retail or wholesale within the State of Michigan or (b) electric power at wholesale within the market area in which an electric generating plant owned by a subsidiary or affiliate of CMS Energy is located or (2) developing an electric generating plant within the State of Michigan or a market area in which an electric generating plant owned by a subsidiary or affiliate of CMS Energy is located.

 

5.5                             Clawback.

 

10



 

(a)                              If, due to a restatement of CMS Energy’s or an affiliate’s publicly disclosed financial statements or otherwise, an Officer is subject to an obligation to make a repayment or return of benefits to CMS Energy or an affiliate pursuant to a clawback provision contained in this Plan, a supplemental executive retirement plan, the Performance Incentive Stock Plan, or any other benefit plan (a “benefit plan clawback provision”) of the Company, the Committee may determine that it shall be a precondition to the payment of any award under this Plan, that the Officer fully repay or return to the Company any amounts owing under such benefit plan clawback provision (taking into account the requirements of Code Section 409A, to extent applicable).  Any and all awards under this Plan are further subject to any provision of law, which may require the Officer to forfeit or return any benefits provided hereunder, in the event of a restatement of the Company’s publicly disclosed accounting statements or other illegal act, whether required by Section 304 of the Sarbanes-Oxley Act of 2002, Section 954 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, federal securities law (including any rule or regulation promulgated by the Securities and Exchange Commission), any state law, or any rule or regulation promulgated by the applicable listing exchange or system on which the Company lists its traded shares.

 

(b)                           To the degree any benefits hereunder are not otherwise forfeitable pursuant to the preceding sentences of this Section 5.5, the Board or a Committee delegated authority by the Board (“delegated Committee”), may require the Officer to return to the Company or forfeit any amounts granted under this Plan, if:

 

1.                                    the grant of such compensation was predicated upon achieving certain financial results which were subsequently the subject of a substantial accounting restatement of the Company’s financial statements filed under the securities laws (a “financial restatement”),

 

2.                                  a lower payout or Annual Award (“reduced financial results”), would have occurred based upon the financial restatement, and

 

3.                                  in the reasonable opinion of the Board or the delegated Committee, the circumstances of the financial restatement justify such a modification of the Annual Award.  Such circumstances may include, but are not limited to, whether the financial restatement was caused by misconduct, whether the financial restatement affected more than one period and the reduced financial results in one period were offset by increased financial results in another period, the timing of the financial restatement or any required repayment, and other relevant factors.

 

11



 

Unless otherwise required by law, the provisions of this Subsection (b) relating to the return of previously paid Plan benefits shall not apply unless a claim is made therefore by the Company within three years of the payment of such benefits.

 

(c)          The Board or delegated Committee shall also have the discretion to require a clawback in the event of a mistake or accounting error in the calculation of a benefit or an award that results in a benefit to an eligible individual to which he/she was not otherwise entitled.  The rights set forth in this Plan concerning the right of the Company to a clawback are in addition to any other rights to recovery or damages available at law or equity and are not a limitation of such rights.

 

VI.                            MISCELLANEOUS

 

6.1                             Impact on Benefit Plans .   Payments made under the Plan will be considered as earnings for the Supplemental Executive Retirement Plans but not for purposes of the Employees’ Savings Plan, Pension Plan, or other Officer benefit programs.

 

6.2                             Impact on Employment .  Neither the adoption of the Plan nor the granting of any Annual Award under the Plan will be deemed to create any right in any individual to be retained or continued in the employment of the Company or any corporation within the Company’s control group.

 

6.3                             Termination or Amendment of the Plan .   The Board of Directors of CMS Energy may amend or terminate the Plan at any time.  Upon termination, any Deferred Annual Award accrued under the Plan will remain in the Plan and be paid out in accordance with the payment options previously selected.  The Plan Administrator is authorized to make any amendments that are deemed necessary or desirable to comply with any applicable laws, regulations or orders or as may be advised by counsel or to clarify the terms and operation of the Plan.  The Company may terminate the Plan and accelerate payment of any deferred benefits under the Plan if it acts consistent in all respects with the requirements of Code Section 409A and any applicable regulations with respect to when a terminated plan may accelerate payment to a participant.

 

6.4                             Governing Law .  The Plan will be governed and construed in accordance with the laws of the State of Michigan.

 

6.5        Dispute Resolution .  Any disputes related to the Plan must be brought to the Plan Administrator.  The Plan Administrator is granted full discretionary authority to apply the terms of the Plan, make administrative rulings, interpret the Plan and make any other determinations with respect to the Plan.  If the Plan Administrator makes an adverse determination and the participant disagrees with or wishes to appeal the determination, the participant must appeal the decision to the Plan Administrator, in writing and not later than 60 days from when the determination was mailed to the participant.  If the participant does not timely appeal the

 

12



 

original determination, the participant has no further rights under the Plan with respect to the matter presented in the claim.  If the participant appeals the original determination and that appeal does not result in a mutually agreeable resolution, then the dispute shall be subject to final and binding arbitration before a single arbitrator selected by the parties to be conducted in Jackson, Michigan, provided the participant makes such request for arbitration in writing within 30 days of the final decision by the Plan Administrator. The arbitration will be conducted and finished within 90 days of the selection of the arbitrator.  The parties shall share equally the cost of the arbitrator and of conducting the arbitration proceeding, but each party shall bear the cost of its own legal counsel and experts and other out-of-pocket expenditures.  The arbitrator must use an arbitrary and capricious standard of review when considering any determinations and findings by the Plan Administrator.

 

VII.     AMENDMENT TO REFLECT CODE SECTION 409A

 

7.1                             Code Section 409A.   This Plan has been amended, effective as of January 1, 2005, to comply with the requirements of Code Section 409A.  To the extent counsel determines additional amendments may be reasonable or desirable in order to comply with Code Section 409A, and any other applicable rules, laws and regulations, such changes shall be authorized with the approval of the Plan Administrator.

 

13


Exhibit 12.1

 

CMS ENERGY CORPORATION

 

Ratios of Earnings to Fixed Charges and Combined Fixed Charges and Preferred Dividends

 

In Millions, Except Ratios

 

 

 

Three Months

 

 

 

 

 

 

 

 

 

 

 

 

 

Ended

 

Year Ended December 31

 

 

March 31, 2014

 

2013

 

2012

 

2011

 

2010

 

2009

 

Earnings as defined 1

 

 

 

 

 

 

 

 

 

 

 

 

 

Pretax income from continuing operations

 

$

309

 

$

756

 

$

622

 

$

606

 

$

590

 

$

335

 

Exclude equity basis subsidiaries

 

(2)

 

(2

)

(7

)

(1

)

(2

)

2

 

Fixed charges as defined 2

 

107

 

423

 

414

 

437

 

449

 

456

 

Earnings as defined 2

 

$

414

 

$

1,177

 

$

1,029

 

$

1,042

 

$

1,037

 

$

793

 

Fixed charges as defined 1

 

 

 

 

 

 

 

 

 

 

 

 

 

Interest on long-term debt

 

$

97

 

$

385

 

$

372

 

$

396

 

$

394

 

$

383

 

Estimated interest portion of lease rental

 

5

 

21

 

21

 

18

 

16

 

17

 

Other interest charges

 

5

 

18

 

23

 

25

 

42

 

58

 

Fixed charges as defined 2

 

107

 

424

 

416

 

439

 

452

 

458

 

Preferred dividends

 

-

 

-

 

-

 

-

 

13

 

17

 

Combined fixed charges and preferred dividends

 

$

107

 

$

424

 

$

416

 

$

439

 

$

465

 

$

475

 

Ratio of earnings to fixed charges

 

3.87

 

2.78

 

2.47

 

2.37

 

2.29

 

1.73

 

Ratio of earnings to combined fixed charges and preferred dividends

 

3.87

 

2.78

 

2.47

 

2.37

 

2.23

 

1.67

 

 

NOTES:

 

1 Earnings and fixed charges as defined in instructions for Item 503 of Regulation S-K.

 

2 Preferred dividends of a consolidated subsidiary are included in fixed charges, but excluded from earnings as defined because the amount was not deducted in arriving at pretax income from continuing operations.

 


 

Exhibit 12.2

 

CONSUMERS ENERGY COMPANY

 

Ratios of Earnings to Fixed Charges and Combined Fixed Charges and Preferred Dividends

 

In Millions, Except Ratios

 

 

 

Three Months

 

 

 

 

 

 

 

 

 

 

 

 

 

Ended

 

Year Ended December 31

 

 

March 31, 2014

 

2013

 

2012

 

2011

 

2010

 

2009

 

Earnings as defined 1

 

 

 

 

 

 

 

 

 

 

 

 

 

Pretax income from continuing operations

 

$

337

 

$

880

 

$

736

 

$

734

 

$

688

 

$

456

 

Exclude equity basis subsidiaries

 

-

 

-

 

-

 

-

 

-

 

-

 

Fixed charges as defined

 

67

 

269

 

269

 

287

 

296

 

313

 

Earnings as defined

 

$

404

 

$

1,149

 

$

1,005

 

$

1,021

 

$

984

 

$

769

 

Fixed charges as defined 1

 

 

 

 

 

 

 

 

 

 

 

 

 

Interest on long-term debt

 

$

59

 

$

237

 

$

232

 

$

251

 

$

246

 

$

250

 

Estimated interest portion of lease rental

 

5

 

21

 

21

 

18

 

16

 

17

 

Other interest charges

 

3

 

11

 

16

 

18

 

34

 

46

 

Fixed charges as defined

 

67

 

269

 

269

 

287

 

296

 

313

 

Preferred dividends

 

-

 

3

 

3

 

3

 

3

 

3

 

Combined fixed charges and preferred dividends

 

$

67

 

$

272

 

$

272

 

$

290

 

$

299

 

$

316

 

Ratio of earnings to fixed charges

 

6.03

 

4.27

 

3.74

 

3.56

 

3.32

 

2.46

 

Ratio of earnings to combined fixed charges and preferred dividends

 

6.03

 

4.22

 

3.69

 

3.52

 

3.29

 

2.43

 

 

NOTES:

 

1 Earnings and fixed charges as defined in instructions for Item 503 of Regulation S-K.

 


 

Exhibit 31.1

 

CERTIFICATION OF JOHN G. RUSSELL

 

I, John G. Russell, certify that:

 

1.             I have reviewed this quarterly report on Form 10-Q of CMS Energy Corporation;

 

2.             Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3.             Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4.             The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5.             The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Dated: April 24, 2014

By:

/s/ John Russell

 

 

John G. Russell

 

 

President and Chief Executive Officer

 


Exhibit 31.2

 

CERTIFICATION OF THOMAS J. WEBB

 

I, Thomas J. Webb, certify that:

 

1.             I have reviewed this quarterly report on Form 10-Q of CMS Energy Corporation;

 

2.             Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3.             Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4.             The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5.             The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Dated: April 24, 2014

By:

/s/ Thomas J. Webb

 

 

Thomas J. Webb

 

 

Executive Vice President and Chief Financial Officer

 


Exhibit 31.3

 

CERTIFICATION OF JOHN G. RUSSELL

 

I, John G. Russell, certify that:

 

1.             I have reviewed this quarterly report on Form 10-Q of Consumers Energy Company;

 

2.             Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3.             Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4.             The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5.             The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Dated: April 24, 2014

By:

/s/ John Russell

 

 

John G. Russell

 

 

President and Chief Executive Officer

 


Exhibit 31.4

 

CERTIFICATION OF THOMAS J. WEBB

 

I, Thomas J. Webb, certify that:

 

1.             I have reviewed this quarterly report on Form 10-Q of Consumers Energy Company;

 

2.             Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;

 

3.             Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;

 

4.             The registrant’s other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:

 

a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;

 

b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;

 

c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and

 

d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most recent fiscal quarter (the registrant’s fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant’s internal control over financial reporting; and

 

5.             The registrant’s other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit committee of the registrant’s board of directors (or persons performing the equivalent functions):

 

a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and

 

b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal control over financial reporting.

 

Dated: April 24, 2014

By:

/s/ Thomas J. Webb

 

 

Thomas J. Webb

 

 

Executive Vice President and Chief Financial Officer

 


Exhibit 32.1

 

Certification of CEO and CFO Pursuant to

18 U.S.C. Section 1350,

as Adopted Pursuant to

Section 906 of the Sarbanes-Oxley Act of 2002

 

 

In connection with the Quarterly Report on Form 10-Q of CMS Energy Corporation (the “Company”) for the quarterly period ended March 31, 2014 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), John G. Russell, as President and Chief Executive Officer of the Company, and Thomas J. Webb, as Executive Vice President and Chief Financial Officer of the Company, each hereby certifies, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of his knowledge:

 

(1)  The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

 

(2)  The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

 

 

/s/ John Russell

 

 

 

 

 

Name:

John G. Russell

 

Title:

President and Chief Executive Officer

 

Date:

April 24, 2014

 

 

 

 

 

 

 

 

 

 

/s/ Thomas J. Webb

 

 

 

 

 

Name:

Thomas J. Webb

 

Title:

Executive Vice President and Chief Financial Officer

 

Date:

April 24, 2014

 

 


 

Exhibit 32.2

 

Certification of CEO and CFO Pursuant to

18 U.S.C. Section 1350,

as Adopted Pursuant to

Section 906 of the Sarbanes-Oxley Act of 2002

 

 

In connection with the Quarterly Report on Form 10-Q of Consumers Energy Company (the “Company”) for the quarterly period ended March 31, 2014 as filed with the Securities and Exchange Commission on the date hereof (the “Report”), John G. Russell, as President and Chief Executive Officer of the Company, and Thomas J. Webb, as Executive Vice President and Chief Financial Officer of the Company, each hereby certifies, pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, that, to the best of his knowledge:

 

(1)  The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and

 

(2)  The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company.

 

 

 

/s/ John Russell

 

 

 

 

 

Name:

John G. Russell

 

Title:

President and Chief Executive Officer

 

Date:

April 24, 2014

 

 

 

 

 

 

 

 

 

 

/s/ Thomas J. Webb

 

 

 

 

 

Name:

Thomas J. Webb

 

Title:

Executive Vice President and Chief Financial Officer

 

Date:

April 24, 2014