EXHIBIT (5)
October 3, 1997
CMS Energy Corporation
Fairlane Plaza South
330 Town Center Drive
Suite 1100
Dearborn, MI 48126
Ladies and Gentlemen:
I am the Assistant General Counsel of CMS Energy Corporation, a
Michigan corporation (the "Company"), and have acted as such in connection
with the Registration Statement on Form S-3 (the "Registration Statement")
being filed by the Company with the Securities and Exchange Commission
(the "Commission") under the Securities Act of 1933, as amended (the
"Securities Act"), relating to the additional registration of not to
exceed $25,500,000 of (i) CMS Energy Common Stock, $.01 par value ("Common
Stock"); (ii) Subordinated Debentures of the Company ( "Debentures");
(iii) Preferred Securities of CMS Energy Trust I; (iv) Preferred
Securities of CMS Energy Trust II; (v) the guarantee of the Preferred
Securities by the Company ("Preferred Securities Guarantee"); (vi) Stock
Purchase Contracts of the Company; and (vii) Stock Purchase Units of the
Company. (The offered securities, collectively, the "Securities".) The
guarantee of the Preferred Securities is to be issued pursuant to the
Preferred Securities Guarantee Agreement (the "Preferred Securities
Guarantee") to be entered into among the Company and The Bank of New York,
as trustee (the "Guarantee Trustee"). The Debentures are to be issued
under an Indenture to be entered into between the Company and The Bank of
New York, as trustee (the "Indenture Trustee"), and one or more
supplemental indenture thereto (collectively, the "Indenture").
Capitalized terms not otherwise defined herein have the respective
meanings specified in the Registration Statement.
In rendering this opinion, I have examined and relied upon a copy
of the Registration Statement. I have also examined, or have arranged for
the examination by an attorney or attorneys under my general supervision,
originals, or copies of originals certified to my satisfaction, of such
agreements, documents, certificates and other statements of governmental
officials and other instruments, and have examined such questions of law
and have satisfied myself as to such matters of fact, as I have considered
relevant and necessary as a basis for this opinion. I have assumed the
authenticity of all documents submitted to me as originals, the
genuineness of all signatures, the legal capacity of all natural persons
and the conformity with the original documents of any copies thereof
submitted to me for examination.
Based on the foregoing, it is my opinion that:
1. The Company is duly incorporated and validly existing under
the laws of the State of Michigan.
2. The Company has corporate power and authority (i) to
execute and deliver the Preferred Securities Guarantee, the
Stock Purchase Agreement and the Indenture, and (ii) to
authorize and sell the Debentures pursuant to the Indenture
and the Common Stock pursuant to the Stock Purchase
Agreement.
3. The Preferred Securities Guarantee will be a legally issued
and binding obligation of the Company (except to the
extent enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or other similar laws affecting the
enforcement of creditors' rights generally and by the
effect of general principles of equity, regardless of
whether enforceability is considered in a proceeding in
equity or at law) when (i) the Registration Statement, as
finally amended (including any necessary post-effective
amendments) shall have become effective under the
Securities Act; (ii) the Preferred Securities Guarantee
shall have been qualified under the Trust Indenture Act of
1939, as amended (the "Trust Indenture Act"), and duly
executed and delivered by the Company and the Guarantee
Trustee; (iii) the Preferred Securities shall have been
legally issued, as contemplated by paragraph 4 below; and
(iv) the Preferred Securities Guarantees shall have been
duly executed and delivered as provided in the Preferred
Securities Guarantee Agreement.
4. Debentures will be legally issued and binding obligations
of the Company (except to the extent enforceability may be
limited by applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent transfer or other
similar laws affecting the enforcement of creditors' rights
generally and by the effect of general principles of
equity, regardless of whether enforceability is considered
in a proceeding in equity or at law) when (i) the
Registration Statement, as finally amended (including any
necessary post-effective amendments) shall have become
effective under the Securities Act, and the Indenture
shall have been qualified under the Trust Indenture Act,
and duly executed and delivered by the Company and the
Indenture Trustee; (ii) an appropriate prospectus
supplement with respect to the particular Debentures then
being sold by the Company shall have been filed with the
Commission pursuant to Rule 424 under the Securities Act;
(iii) the Company's Board of Directors or duly authorized
committee thereof shall have duly adopted final resolutions
authorizing the issuance and sale of the Debentures, as
contemplated by the Registration Statement and the
Indenture; and (iv) the supplemental indenture under which
such Debentures are to be issued shall have been duly
executed and authenticated as provided in the Indenture and
such resolutions, and shall have been duly delivered to the
purchasers thereof against payment of the agreed
consideration therefor.
5. The Stock Purchase Contracts and the Stock Purchase Units,
when issued and sold, will be legally issued and binding
obligations of the Company (except to the extent
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer
or other similar laws affecting the enforcement of
creditors' rights generally and by the effect of general
principles of equity, regardless of whether enforceability
is considered in a proceeding in equity or at law) when (i)
the Registration Statement, as finally amended, (including
any necessary post-effective amendments), shall have become
effective under the Securities Act; (ii) an appropriate
prospectus supplement with respect to the particular Stock
Purchase Contracts and the Stock Purchase Units then being
sold by the Company shall have been filed with the
Commission pursuant to Rule 424 under the Securities Act;
and (iii) and the Stock Purchase Contracts under which the
Common Stock are to be purchased shall have been duly
executed and delivered as provided in the Stock Purchase
Contracts.
6. The Common Stock will be legally issued, fully paid and
non-assessable when; (i) the Registration Statement, as
finally amended, shall have become effective under the
Securities Act; (ii) the Company's Board of Directors or a
duly authorized committee thereof shall have duly adopted
final resolutions authorizing the issuance and sale of the
Common Stock, Preferred Securities or Debentures to be
converted into Common Stock or Stock Purchase Contracts
pursuant to which Common Stock may be purchased, as
contemplated by the Registration Statement and prospectus
supplement relating thereto; and (iii) upon delivery,
purchase or conversion, as the case may be, certificates
representing the Common Stock shall have been duly
executed, countersigned and registered and duly delivered
to the purchasers thereof against payment of the agreed
consideration therefor.
7. The Preferred Securities of CMS Energy Trust I and CMS Energy
Trust II (each a "CMS Trust" and, together, the "CMS Trusts"),
when the Amended and Restated Trust Agreement of such CMS
Trust (each a "Trust Agreement") is duly executed and
delivered and the terms of the Preferred Securities are
established in accordance with the terms of the Trust
Agreement of such CMS Trust, will be duly authorized for
issuance and, when issued and executed in accordance with
the Trust Agreement of such CMS Trust and delivered and paid
for as set forth in the form of prospectus supplement for the
Preferred Securities included in the Registration Statement,
will be validly issued, fully paid and nonassessable,
representing undivided beneficial interests in the assets of
such CMS Trust. I bring to your attention, however, that the
Preferred Securities holders may be obligated, pursuant to the
Trust Agreement of such CMS Trust, to (i) provide indemnity
and/or security in connection with and pay taxes or govern-
mental charges arising from transfers of Preferred Securities
and (ii) provide security and indemnity in connection with the
requests of or directions to the Property Trustee of such
CMS Trust to exercise its rights and powers under the Trust
Agreement of such CMS Trust.
For purposes of this opinion, I have assumed that there will be
no changes in the laws currently applicable to the Company and that such
laws will be the only laws applicable to the Company.
I do not find it necessary for the purposes of this opinion to
cover, and accordingly I express no opinion as to, the application of the
securities or blue sky laws of the various states to the execution and
delivery of the Preferred Securities Guarantee or the sale of the
Securities.
I am a member of the bar of the State of Michigan and I express
no opinion as to the laws of any jurisdiction other than the State of
Michigan and the federal law of the United States of America. I note that
the rights, duties and obligations of the Indenture Trustee under the
Indenture are stated to be governed and construed in accordance with the
laws of the State of New York. However, for purposes of paragraph 4
above, I have assumed that the Indenture, as to the rights, duties and
obligations of the Indenture Trustee, is stated to be governed by the laws
of the State of Michigan. I further note that each Trust Agreement and the
rights and obligations of each of the Preferred Securities holders, each
CMS Trust and the Trustees of each CMS Trust with respect to the Trust
Agreement in the Preferred Securities, is stated to be governed by, and
construed in accordance with, the laws of the State of Delaware. However, for
purposes of paragraph 7 above, I have assumed that the Trust Agreement, rights
and obligations of each of the Preferred Securities holders, each CMS Trust
and Trustees of each CMS Trust with respect to the Trust Agreement is stated
to be governed by the laws of the State of Michigan.
I hereby consent to the filing of this opinion as an exhibit to
the Company's Registration Statement on Form S-3 relating to the
Securities and to all references to me included in or made a part of the
Registration Statement.
Very truly yours,
/s/ Michael D. Van Hemert
_____________________________
Michael D. Van Hemert