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Exhibit 5(a)
June 12, 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 registration of not to exceed $300,000,000 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
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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. The 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
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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.
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
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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 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
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Michael D. Van Hemert