Page
Number
-----------------
Report of Independent Auditors
Audited Financial Statements:
Statements of Net Assets Available for Benefits 2
Statement of Changes in Net Assets Available for Benefits 3
Notes to Financial Statements 4
Supplemental Schedules:
Schedule H; Line 4i - Schedule of Assets (Held At End of Year) 12
Schedule H; Line 4j - Schedule of Reportable Transactions 13
Signatures 14
Exhibits Index 15
|
The Employee Stock Ownership Plan Committee Atmos Energy Corporation Employee Stock Ownership Plan and Trust
We have audited the accompanying statements of net assets available for benefits of the Atmos Energy Corporation Employee Stock Ownership Plan and Trust as of December 31, 2001 and 2000, and the related statement of changes in net assets available for benefits for the year ended December 31, 2001. These financial statements are the responsibility of the Plan's management. Our responsibility is to express an opinion on these financial statements based on our audits.
We conducted our audits in accordance with auditing standards generally accepted in the United States. Those standards require that we plan and perform the audit to obtain reasonable assurance about whether the financial statements are free of material misstatement. An audit includes examining, on a test basis, evidence supporting the amounts and disclosures in the financial statements. An audit also includes assessing the accounting principles used and significant estimates made by management, as well as evaluating the overall financial statement presentation. We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above present fairly, in all material respects, the net assets available for benefits of the Plan at December 31, 2001 and 2000, and the changes in its net assets available for benefits for the year ended December 31, 2001, in conformity with accounting principles generally accepted in the United States.
Our audits were performed for the purpose of forming an opinion on the financial statements taken as a whole. The accompanying supplemental schedules of assets (held at end of year) as of December 31, 2001, and reportable transactions for the year then ended, are presented for purposes of additional analysis and are not a required part of the financial statements but are supplementary information required by the Department of Labor's Rules and Regulations for Reporting and Disclosure under the Employee Retirement Income Security Act of 1974. These supplemental schedules are the responsibility of the Plan's management. The supplemental schedules have been subjected to the auditing procedures applied in our audits of the financial statements and, in our opinion, are fairly stated in all material respects in relation to the financial statements taken as a whole.
Dallas, Texas
June 26, 2002
December 31
---------------------------
2001 2000
----------- -----------
ASSETS
Investments:
Common stock of Atmos Energy Corporation $48,502,656 $50,774,246
Registered Investment Companies:
T. Rowe Price Prime Reserve Fund 793,245 792,264
T. Rowe Price Balanced Fund 2,741,118 2,799,693
T. Rowe Price Spectrum Income Fund 1,645,032 1,261,675
T. Rowe Price Spectrum Growth Fund 5,638,158 5,803,756
T. Rowe Price International Stock Fund 774,112 880,518
T. Rowe Price Short-Term Bond Fund 1,603,654 1,286,619
T. Rowe Price New Horizons Fund 241,606 --
T. Rowe Price New American Growth Fund 6,096,225 6,724,036
T. Rowe Price Equity Income Fund 9,445,301 8,851,815
T. Rowe Price Equity Index 500 Fund 347,323 --
Stein Roe Growth Stock Fund 114,064 --
Common/Collective Trust:
T. Rowe Price Stable Value Fund 6,710,572 6,180,433
Common stock of Entergy Corporation 74,419 80,635
Common stock of Citizens Communications
Company, Class B 2,219,732 --
Participant loans 3,580,518 3,098,635
----------- -----------
Total investments 90,527,735 88,534,325
Receivables:
Participant contributions 153,099 298,216
Company contributions 83,328 169,782
----------- -----------
Total receivables 236,427 467,998
----------- -----------
Net assets available for benefits $90,764,162 $89,002,323
=========== ===========
|
See accompanying notes
ADDITIONS
Investment income (loss):
Net depreciation in fair value of investments $ (8,259,185)
Dividends on common stock 2,513,634
Interest and dividend income on registered investment
companies 1,533,863
Interest on participant loans 312,782
------------
(3,898,906)
Contributions:
Participants 6,073,258
Company 3,300,620
Rollovers 3,961,009
------------
13,334,887
------------
Total additions 9,435,981
DEDUCTIONS
Distributions to participants 7,665,336
Administrative expenses 8,806
------------
Total deductions 7,674,142
------------
Net increase 1,761,839
Net assets available for benefits, at beginning of year 89,002,323
------------
Net assets available for benefits, at end of year $ 90,764,162
============
|
See accompanying notes
1. Description of the Plan
The following brief description of the Atmos Energy Corporation Employee Stock Ownership Plan and Trust (the "Plan") is provided for general information only. Participants should refer to the Summary Plan Description for a more complete description of the Plan's provisions. Effective March 1, 2002, the Plan's name was changed to the Atmos Energy Corporation Retirement Savings Plan and Trust.
General
The Plan is a trusteed defined contribution retirement benefit plan offered to eligible employees of Atmos Energy Corporation (the "Company" or "Atmos"). The Plan is to continue for an indefinite term and may be amended or terminated at any time by the Board of Directors of Atmos (the "Board"). The Plan is subject to the provisions of the Employee Retirement Income Security Act of 1974, as amended ("ERISA").
In July 2001, the Company completed the acquisition of the assets of Louisiana
Gas Service Company and LGS Natural Gas Company ("LGS") from Citizens
Communications Company, formerly Citizens Utilities Company. Substantially all
employees of LGS that joined the Company were immediately eligible to
participate in the Plan. In addition, those employees were allowed to rollover
into the Plan their assets which were held in the Citizens Utilities Company
401(k) Employee Benefit Plan ("Citizens Plan").
Eligibility
Substantially all employees of the Company (except employees cover by other agreements, leased employees and any employees covered by a collective bargaining agreement in which Plan participation has not been negotiated through good faith bargaining) are eligible to participate in the Plan as of the first payroll period coincident with or immediately following the date of hire ("Participants").
Contributions
Contributions to the Plan include contributions withheld by the Company on behalf of each Participant in an amount specified by the Participant pursuant to a salary reduction agreement, as well as matching Company contributions and any discretionary Company contributions.
Participants are eligible to receive matching Company contributions after completing at least one year of service, effective on the earlier of January 1, April 1, July 1 or October 1 after which one year of service has been completed.
Participants may elect a salary reduction (not to exceed $10,500 in 2001), ranging from a minimum of 1% of eligible compensation, as defined by the Plan, up to the maximum allowed by the Internal Revenue Service ("IRS").
The Company shall contribute a matching Company contribution in an amount equal to 100% of each Participant's salary reduction contributions, up to a maximum of 4% of such Participant's eligible compensation for the Plan year. The Company's matching contribution meets the current IRS "Safe Harbor" definition. The Company may revoke or amend any Participant's salary reduction agreement if necessary to ensure that (1) each Participant's additions for any year will not exceed applicable IRS Code (the "Code") limitations and (2) Company matching contributions will be fully deductible for federal income tax purposes.
The Plan also provides that a discretionary contribution may be made at the option of the Board and in an amount determined annually by the Board. No discretionary contribution was made to the Plan in 2001.
All contributions to a Participant's account are immediately and fully vested.
Investment Options
The Plan allows Participants' salary reductions to be invested among a variety of registered investment companies, one common/collective trust and Atmos common stock.
The Stock Purchase Program Fund, consisting of Atmos common stock, is non-participant and participant directed. All Company matching and discretionary contributions are directed into this fund and may not be transferred to another investment option until the plan year following the year a Participant reaches age 55. In any plan year subsequent to a Participant reaching age 55, a Participant will have the opportunity, during the first calendar quarter, to diversify, in a one-time election, his or her Atmos common stock into other available investment options. Contributions made to this fund by Participants may be transferred to other investment options during the last two weeks (14 calendar days) of each calendar quarter with the actual transfer taking place on the first business day after the start of the next calendar quarter. Effective March 1, 2002, contributions made to this fund by Participants are allowed to be traded on a daily basis.
In May 2000, the Company completed the acquisition of the Missouri natural gas distribution assets of Associated Natural Gas ("ANG") from a subsidiary of Southwestern Energy Corporation. Employees of ANG that joined the Company were allowed to transfer into the Plan his or her assets which were held in the Southwestern Energy Corporation 401(k) Plan ("Southwestern Plan"). To accommodate several ANG employees who held Entergy Corporation ("Entergy") common stock in the Southwestern Plan, an additional account was established in the Plan to hold the Entergy stock. This account was established as a frozen account where funds can be liquidated but no new stock added.
To accommodate several LGS employees who held Citizens Communications Company ("Citizens") Class B common stock in the Citizens Plan, an additional account was established in the Plan to hold the Citizens stock. This account was established as a frozen account where funds can be liquidated but no new stock added.
Distributions to Participants
Dividends received on Atmos common stock, in accordance with the Plan, must be distributed to Participants no later than 90 days after the Plan's year end. Currently, the dividends are distributed quarterly. However, a Participant may elect to have his or her dividends reinvested in Atmos common stock by making an election to make an additional salary reduction contribution in the amount of the quarterly dividend. This election must be made on the day prior to a dividend payment date and will remain in effect until the election is changed.
Effective March 1, 2002, dividends received on Atmos common stock will automatically be reinvested in Atmos common stock. However, a Participant may elect to have his or her dividends paid in cash. This election may be made at any time during the period beginning on the first business day on or after the dividend record date and ending at a time specified by the Employee Stock Ownership Plan Committee (the "Committee") on the last business day preceding the dividend payout date. Once a Participant elects to receive his or her dividends in cash, the election will remain in effect until the election is changed.
A Participant may elect to receive an annual distribution of Company matching or discretionary contributions made to his or her account prior to January 1, 1999 and which were allocated to his or her account at least two years prior to such election. These annual elections are made as of January 1. The annual distribution from the Plan is normally made in February of the following year. Company matching or discretionary contributions made after January 1, 1999 meet the current IRS "Safe Harbor" definition and are not eligible for in-service withdrawal.
In the event of retirement, death, termination due to disability or termination of employment for another reason, a Participant is entitled to withdraw the entire amount from each of his or her accounts. Withdrawals from a Participant's salary reduction account, as well as the Company matching and discretionary accounts, are also allowed upon proof of financial hardship meeting IRS "Safe Harbor" definitions or, if elected, subsequent to the Participant attaining age 59 1/2. Withdrawals from the Stock Purchase Program Fund may be in the form of Atmos common stock or cash, as determined by the Committee. However, a Participant has the right to have withdrawals made in the form of Atmos common stock upon written notice by the Participant.
Loans to Participants
A Participant may borrow up to the lesser of $50,000 or 50% of his or her account balance, with a minimum loan amount of $1,000. Loans are repaid through payroll deductions over periods of up to 5 years for general purpose loans or 15 years for primary residence loans. The interest rate is the U.S. prime rate plus 2% and is fixed over the life of the loan. A Participant may have two loans outstanding if the proceeds of one of the loans were used to purchase the Participant's primary residence.
Plan Termination
While the Company has not expressed any intent to terminate the Plan, it is free to do so at any time. In the event of the dissolution, merger, consolidation or reorganization of the Company, the Plan shall terminate and the trust shall be liquidated, unless the Plan is continued by a successor. Upon such liquidation, all accounts shall be distributed to the Participants.
2. Summary of Significant Accounting Policies
Basis of Presentation
The financial statements of the Plan are prepared on the accrual basis of accounting. Distributions to participants are recorded when paid.
Use of Estimates
The preparation of financial statements in conformity with accounting principles generally accepted in the United States requires management to make estimates that affect the amounts reported in the financial statements and accompanying notes. Actual results could differ from those estimates.
Investment Valuation and Income Recognition
Shares of registered investment companies are valued at published market prices which represent the net asset value of shares held by the Plan at year end. Investments in common stock are valued at quoted market prices. The fair value of investments in the common/collective trust are determined periodically by the Trustees based upon the current fair value of the underlying assets of the fund. The fair value of participant loans are valued at cost which approximates fair value.
Purchases and sales of securities are recorded on a trade date basis. Investment income is recorded on the accrual basis and dividend income is recorded on the ex-dividend date. Realized gains and losses from security transactions are reported on the average historical cost method. Capital gains and losses are included in interest and dividend income.
3. Administration of the Plan and Plan Assets
The Plan is administered by the Committee, consisting of at least three persons who are appointed by the Board. The members of the Committee serve at the pleasure of the Board without compensation. Certain administrative functions are performed by employees of the Company. No employee of the Company receives compensation from the Plan.
In accordance with the Plan, the Company has appointed the Committee as Trustee of the Plan. The Trustee may be removed at the discretion of the Board. The Trustee shall vote any common stock held in the trust in accordance with directions received from the Participants, or at its discretion if there are no such directions. The Plan's assets are held by T. Rowe Price Associates, Inc., the Custodian and Recordkeeper of the Plan.
All expenses of the Plan are paid by the Company except for processing fees related to loan withdrawals.
Atmos common stock held in the Stock Purchase Program Fund is non-participant and participant directed. The investment activity related to Atmos common stock cannot be segregated between non-participant and participant directed. The following presents the information about the net assets and the components of the changes in net assets relating to the non-participant directed investments:
December 31
---------------------------
2001 2000
----------- -----------
Investments:
Atmos Energy Corporation Common
Stock $48,502,656 $50,774,246
=========== ===========
|
Year ended
December 31,
2001
------------
Changes in net assets:
Contributions $ 7,336,721
Dividends 2,513,634
Interest on participant loans 168,322
Loan repayments 629,504
Net depreciation in fair value of investments (6,549,239)
Distributions to participants (6,326,226)
Interfund transfers out (44,306)
-----------
$(2,271,590)
===========
|
5. Investments
Investments that represent 5% or more of the Plan's net assets available for benefits are separately identified in the statements of net assets available for benefits.
During 2001, the Plan's investments (including investments purchased and sold, as well as held during the year) appreciated/(depreciated) in fair value as determined by quoted market prices for common stock and published market prices for registered investment companies as follows:
Atmos Energy Corporation Common Stock $(6,549,239)
Registered Investment Companies:
T. Rowe Price Balanced Fund (237,055)
T. Rowe Price Spectrum Income Fund (25,686)
T. Rowe Price Spectrum Growth Fund (595,927)
T. Rowe Price International Stock Fund (214,872)
T. Rowe Price Short-Term Bond Fund 33,881
T. Rowe Price New Horizons Fund (3,390)
T. Rowe Price New America Growth Fund (886,375)
T. Rowe Price Equity Income Fund (355,111)
T. Rowe Price Equity Index 500 Fund (19,491)
Stein Roe Growth Stock Fund (18,912)
Entergy Corporation Common Stock (6,091)
Citizens Communications Company Common Stock 619,083
-----------
$(8,259,185)
===========
|
6. Differences Between the Financial Statements and Form 5500
The following is a reconciliation of net assets available for benefits per the financial statements to the Form 5500:
December 31
------------------------------
2001 2000
------------ ------------
Net assets available for benefits per the
financial statements $ 90,764,162 $ 89,002,323
Amounts allocated to withdrawing participants (557,745) (981,546)
------------ ------------
Net assets available for benefits per the
Form 5500 $ 90,206,417 $ 88,020,777
============ ============
|
6. Differences Between the Financial Statements and Form 5500 (continued)
The following is a reconciliation of distributions to participants per the financial statements to the Form 5500:
Year ended
December 31,
2001
------------
Distributions to participants per financial statements $ 7,665,336
Add: Amounts allocated to withdrawing participants
at December 31, 2001 557,745
Less: Amounts allocated to withdrawing participants
at December 31, 2000 (981,546)
-----------
Distributions to participants per the Form 5500 $ 7,241,535
===========
|
Amounts allocated to withdrawing participants are recorded on the Form 5500 for distributions to participants that have been processed and approved for payment prior to December 31 but not yet paid as of that date.
7. Income Tax Status
The Plan has received a determination letter from the IRS dated May 13, 1997 stating that the Plan is qualified under Section 401(a) of the Code and, therefore, the related trust is exempt from taxation. Once qualified, the Plan is required to operate in conformity with the Code to maintain its qualification. The Plan has been amended since receiving the determination letter. In February 2002, the Plan made an application with the IRS to receive a new determination letter stating that the Plan is qualified under Sections 401(a) and 501(a) of the Code. The Plan administrator believes the Plan is being operated in compliance with the applicable requirements of the Code and, therefore, believes that the Plan is qualified and the related trust is tax-exempt.
(c) Description of investment
(b) Identity of issue, including maturity date
borrower, lessor rate of interest, collateral, (e) Current
(a) or similar party par or maturity value (d) Cost value
--- ---------------------- ----------------------------- -------- -----------
* Atmos Energy Corporation Common stock; 2,282,478
shares $43,749,427 $ 48,502,656
* T. Rowe Price Associates,
Inc. Stable Value Fund ** 6,710,572
* T. Rowe Price Associates,
Inc. Prime Reserve Fund ** 793,245
* T. Rowe Price Associates,
Inc. Balanced Fund ** 2,741,118
* T. Rowe Price Associates,
Inc. Spectrum Income Fund ** 1,645,032
* T. Rowe Price Associates,
Inc. Spectrum Growth Fund ** 5,638,158
* T. Rowe Price Associates,
Inc. International Stock Fund ** 774,112
* T. Rowe Price Associates,
Inc. Short-Term Bond Fund ** 1,603,654
* T. Rowe Price Associates,
Inc. New Horizons Fund ** 241,606
* T. Rowe Price Associates,
Inc. New America Growth Fund ** 6,096,225
* T. Rowe Price Associates,
Inc. Equity Income Fund ** 9,445,301
* T. Rowe Price Associates,
Inc. Equity Index 500 Fund ** 347,323
* Stein Roe Farnham &
Company Stein Roe Growth Stock Fund ** 114,064
Entergy Corporation Common stock; 1,903
shares ** 74,419
Citizens Communications Common stock, 208,230
shares ** 2,219,732
* Participant Loans Interest rates from 7.50%
to 11.00% -- 3,580,518
----------- -------------
** $ 90,527,735
=========== =============
|
* Indicates party-in-interest to the Plan
** Cost information is not required for participant-directed investments
(h)
(a) Current value (i)
Identity of (b) (c) (d) (g) of asset on Net
party Description Purchase Selling Cost of transaction gain or
involved of security price price asset date (loss)
-------------- ----------- ----------- ------------- ------------ ------------- ---------
Category (iii) - Series of transactions in excess of 5 percent of plan assets
Atmos Energy Common $8,553,779 -- $8,553,779 $8,553,779 --
Corporation Stock
Atmos Energy Common -- $4,276,130 $3,405,944 $4,276,130 $870,186
Corporation Stock
|
Columns (e) and (f) not applicable
There were no category (i), (ii) or (iv) reportable transactions during the year ended December 31, 2001
Schedule H; Line 4j information is presented for non-participant directed investments only
Pursuant to the requirements of the Securities Exchange Act of 1934, the Employee Stock Ownership Plan Committee of the Atmos Energy Corporation Employee Stock Ownership Plan and Trust, as amended, has duly caused this annual report to be signed on its behalf by the undersigned, hereunto duly authorized.
By: /s/ LAURIE M. SHERWOOD
----------------------------
June 28, 2002 Laurie M. Sherwood
Chairperson of the Committee
|
PAGE NUMBER OR
EXHIBIT INCORPORATION BY
NUMBER DESCRIPTION REFERENCE TO
------- ------------------------------------------------ ----------------------------
4 Instruments defining rights of security
holders:
(a) Atmos Energy Corporation Employee Exhibit (4)(f) of Form 11-K
Stock Ownership Plan and Trust for the year ended December
(Effective January 1, 1999) 31, 1998 (File No. 33-57687)
(b) Amendment No. One to the Atmos Exhibit (4)(b) of Form 11-K
Energy Corporation Employee Stock for the year ended December
Ownership Plan and Trust 31, 2000 (File No. 33-57687)
(Effective January 1, 1999), effective
as of January 1, 1999
(c) Amendment No. Two to the Atmos Exhibit (4)(c) of Form 11-K
Energy Corporation Employee Stock for the year ended December
Ownership Plan and Trust 31, 2000 (File No. 33-57687)
(Effective January 1, 1999), effective
as of June 1, 2000
(d) Amendment No. Four to the Atmos
Energy Corporation Employee Stock
Ownership Plan and Trust
(Effective January 1, 1999), effective
as of July 1, 2001
(e) Amendment No. Five to the Atmos
Energy Corporation Employee Stock
Ownership Plan and Trust
(Effective January 1, 2002), effective
as of December 31, 2001
(f) Amendment No. Six to the Atmos
Energy Corporation Employee Stock
Ownership Plan and Trust
(Effective January 1, 1999), effective
as of March 1, 2002
23 Consent of Independent Auditors
|
WHEREAS, ATMOS ENERGY CORPORATION (the "Company") has heretofore amended and restated the Atmos Energy Corporation Employee Stock Ownership Plan and Trust Effective January 1, 1999 (the "Plan") and thereafter has amended the Plan from time to time; and
WHEREAS, pursuant to the provisions of Section 10.01 of the Plan, the Company desires to amend the Plan in certain respects as hereinafter provided.
NOW, THEREFORE, Atmos Energy Corporation does hereby amend the Plan, effective as of July 1, 2001, as follows:
1. Section 2.01(1) is amended by adding the following at the end of paragraph (1) of said Section:
Those individuals shall include employees of Citizens Communications Company, formerly Citizens Utilities Company ("Citizens"), who became Employees of an Employer effective as of July 1, 2001, as a result of the Company's acquisition from Citizens of substantially all of the assets associated with the Louisiana Gas Service division operations of Citizens (such individuals are referred to herein as "LGS Employees").
2. Article III is amended by adding the following Section 3.07 at the end of said Article:
3.07 Special Rules for LGS Employees
(a) For purposes of eligibility to make salary reduction contributions under
Section 4.01, LGS Employees (as defined in Section 2.01(1) hereof) shall be
eligible to participate in this Plan as of the first day of the first payroll
period coincident with or immediately following July 1, 2001. For purposes of
eligibility to receive allocations of safe harbor matching contributions under
Section 4.02 and discretionary contributions under Section 4.03, an LGS Employee
shall be eligible to participate in this Plan as of the Entry Date coincident
with or immediately following his completion of one (1) Year of Service. For
purposes of Section
3.02, LGS Employees shall be credited with Service equal to their
service credited under the Citizens Utilities Company 401(k)
Employee Benefit Plan (the "Citizens Plan").
(b) All stock that is Citizens stock received as part of an eligible rollover distribution from the Citizens Plan, as provided for in Section 4.05, shall be held in a separate investment fund called the Citizens Stock Fund established for an LGS Employee under the Plan. All amounts contained in the Citizens Stock Fund may be invested in other investments as provided for in Section 7.05(e).
(c) For purposes of Section 3.01(c), the Entry Date for LGS Employees who have completed one (1) Year of Service as of July 1, 2001, after taking into account the provisions of Section 3.07(a) hereof, shall be the first day of the first payroll period coincident with or immediately following July 1, 2001.
(d) All outstanding loans of the LGS Employees under the Citizens Plan that were received as part of eligible rollover distributions from the Citizens Plan, as provided for in Section 4.05, shall be maintained and administered under Section 7.06 in accordance with the terms of said loans as in effect at the time of said receipt.
3. Section 7.05 is further amended by adding a new subsection 7.05(e) at the end of said Section as follows:
(e) Citizens Stock Fund. Notwithstanding the foregoing provisions of this Section 7.05, a Participant for whom amounts are invested in the Citizens Stock Fund provided for under Section 3.07(b) may direct that all or any portion of such amounts be invested in a Diversified Fund or in Company Stock in accordance with the procedures established by the Committee; however, no additional amounts may be invested in the Citizens Stock Fund.
IN WITNESS WHEREOF, the Company has caused this AMENDMENT NO. FOUR TO THE ATMOS ENERGY CORPORATION EMPLOYEE STOCK OWNERSHIP PLAN AND TRUST EFFECTIVE JANUARY 1, 1999 to be executed in its name on its behalf this 15th day of April, 2002, effective as of July 1, 2001.
By: /s/ ROBERT W. BEST
-------------------------------------
Robert W. Best
Chairman of the Board, President and
Chief Executive Officer
|
ATTEST:
/s/ SHIRLEY A. HINES ------------------------------------ |
ATTEST:
By: /s/ LAURIE M. SHERWOOD
/s/ SHIRLEY A. HINES -------------------------------------
------------------------------------ Laurie M. Sherwood
By: /s/ TOM S. HAWKINS, JR.
-------------------------------------
Tom S. Hawkins, Jr.
By: /s/ RONALD W. MCDOWELL
-------------------------------------
Ronald W. McDowell
By: /s/ WYNN D. MCGREGOR
-------------------------------------
Wynn D. McGregor
By: /s/ GORDON J. ROY
-------------------------------------
Gordon J. Roy
|
WHEREAS, ATMOS ENERGY CORPORATION (the "Company") has heretofore amended and restated the Atmos Energy Corporation Employee Stock Ownership Plan and Trust Effective January 1, 1999 (the "Plan") and thereafter has amended the Plan from time to time; and
WHEREAS, pursuant to the provisions of Section 10.01 of the Plan, and in accordance with the authority delegated to the undersigned by the Board of Directors of the Company at its meeting on November 7, 2001, the Company desires to amend the Plan in certain respects as hereinafter provided to reflect certain provisions of the Economic Growth and Tax Relief Reconciliation Act of 2001 ("EGTRRA"). This amendment is intended as good faith compliance with the requirements of EGTRRA and is to be construed in accordance with EGTRRA and any guidance issued thereunder.
NOW, THEREFORE, except as otherwise provided herein, Atmos Energy Corporation does hereby amend the Plan, effective as of January 1, 2002 as follows:
1. Subsection 2.01(i)(2) is amended by substituting "$200,000" for "$150,000" as it appears in said Subsection.
2. Subsection 4.01(b) is amended by deleting said Subsection in its entirety and substituting in lieu thereof the following:
Each Participant shall be given the option to execute a salary reduction agreement with his Employer which provides that the Participant agrees to accept a reduction in salary from his Employer equal to any percentage of his Compensation (excluding bonuses) per payroll, which percentage shall be neither less than one percent (1%) nor more than sixty-five percent (65%) of such Participant's Compensation (herein, the "Salary Reduction Contributions").
3. Subsection 4.01(c) is amended by striking the first sentence of said Subsection in its entirety and substituting in lieu thereof the following:
(c) Notwithstanding anything herein to the contrary, for any
Participant's taxable year, a Participant's Salary Reduction
Contribution shall not exceed the dollar limitation contained in
Code Section 402(g) in effect for such taxable year, except to the
extent permitted under Subsection 4.01(f) and Code Section
414(v), if applicable.
4. Section 4.01 is amended by striking the first full paragraph following Subsection 4.01(c) and substituting in lieu thereof the following:
5. Section 4.01 is amended by adding the following new subsection (f) at the end of said Section:
(f) Effective with a Participant's taxable year beginning after December 31, 2001, those Participants who have attained age fifty (50) before the close of the Plan Year ending after December 31, 2001, or before the close of any Plan Year thereafter, shall be eligible to make Salary Reduction Contributions in addition to the Salary Reduction Contributions provided for in Subsection 4.01(b) hereof in accordance with, and subject to the limitations of, Code Section 414(v) ("Catch-Up Salary Reduction Contributions"). Such Catch-Up Salary Reduction Contributions shall not be taken into account for purposes of Subsection 4.01(c) (and Code Section 402(g)) and Section 5.03 (and Code Section 415). The Plan shall not be treated as failing to satisfy the provisions of the Plan implementing the requirements of Code Sections 401(k)(3), 401(k)(11), 401(k)(12), and 410(b), or 416, as applicable, by reason of making such Catch-up Salary Reduction Contributions.
6. Subsection 4.05(a) is amended by adding the following after the first sentence of said Section:
The qualified plans from which eligible rollover distributions may be received pursuant to this paragraph (a) are qualified plans described in Code Sections 401(a) or 403(a), annuity contracts described in Code Section 403(b) and eligible plans under Code Section 457(b) which are maintained by a state, political subdivision of a state, or any agency or instrumentality of a state or political subdivision of a state.
7. Subsection 5.03(a) is amended, effective for Plan Years beginning after December 31, 2001, by striking the first paragraph of said Subsection in its entirety and substituting in lieu thereof the following:
Notwithstanding anything contained herein to the contrary, the total Additions made to the Salary Reduction Account, Safeharbor Matching Contribution Account and Employer Contribution Account of a Participant for any Plan Year shall not exceed the lesser of:
(2) one hundred percent (100%) of the Participant's total compensation for such Plan Year.
The compensation limit referred to in clause (2) above shall not apply to any contribution for medical benefits after separation from service (within the meaning of Code Sections 401(h) or 419A(f)(2)) which is otherwise treated as an Addition.
8. Subsection 5.03(a) is amended further by striking the reference to "$150,000" in clause (v) in the last paragraph of said Subsection and substituting in lieu thereof, "$200,000."
9. Subsection 5.04(a)(1) is amended by adding the following to the end of said Subsection:
Notwithstanding the foregoing, for purposes of the 60% Test for any Plan Year beginning after December 31, 2001, the following shall apply:
(i) The present values of accrued benefits and the amounts of account balances of an employee as of the determination date shall be increased by the distributions made with respect to the employee under the Plan and any plan aggregated with the Plan under Code Section 416(g)(2) during the 1-year period ending on such determination date. The preceding sentence shall also apply to distributions under a terminated plan which, had it not been terminated, would have been aggregated with the Plan under Code Section 416(g)(2)(A)(i). In the case of a distribution made for a reason other than separation of service, death or disability, this provision shall be applied by substituting "5-year period" for "1-year period."
(ii) The accrued benefits and accounts of any individual who has not performed services for the Employer during the 1-year period ending on the determination date shall not be taken into account.
10. Subsection 5.04(a)(2)(C) is amended by striking said Subsection in its entirety and substituting in lieu thereof the following:
(C) Key Employee. For purposes of this Section 5.04, a "Key Employee" is any person employed or formerly employed by any Employer or Affiliate (and the beneficiaries of any such person) who is, at any time during the Plan Year that includes the determination date, any one or more of the following:
(1) An officer of an Employer or an Affiliate having annual compensation for the applicable Plan Year greater than One Hundred Thirty Thousand Dollars ($130,000), as adjusted under Code Section 416(i)(1) for Plan Years beginning after December 31, 2002.
(2) Any person owning (or considered as owning within the meaning of Code Section 318) more than five percent (5%) of the outstanding stock of an Employer or an Affiliate or stock possessing more than five percent (5%) of the total combined voting power of such stock or more than five percent (5%) of the capital or profits interest of an Employer or an Affiliate which is not a corporation.
(3) A person who would be described in Subsection (2) above if "one percent (1%)" were substituted for "five percent (5%)" each place it appears in said Subsection (2), and whose aggregate annual compensation from all Employers or Affiliates is more than One Hundred Fifty Thousand Dollars ($150,000).
(4) Notwithstanding any other provision in this Plan to the contrary, for purposes of determining ownership under this Section 5.04(a)(2)(C), the rules of Code Sections 414(b), (c), and (m) shall not apply in defining who is an Employer.
The determination of who is a Key Employee hereunder shall be
made in accordance with the provisions of Code Section 416(i)
(1) and the regulations thereunder.
11. Subsection 5.04(b) is amended by striking the reference to "$150,000" in said Subsection and substituting in lieu thereof, "$200,000."
12. Subsection 5.04(b) is further amended by adding the following paragraph at the end of said Subsection:
Effective for Plan Years beginning after December 31, 2001, Safeharbor Matching Contributions, if any, shall be taken into account for purposes of satisfying the minimum contribution requirements of Code Section 416(c)(2) and the requirements of this Section 5.04. The preceding sentence shall apply with respect to Safeharbor Matching Contributions or, if the Plan provides that the minimum contribution requirement shall be met in another plan, matching contributions under such other plan. Safeharbor Matching Contributions that are used to satisfy the minimum contribution requirements shall be treated as Safeharbor Matching Contributions for purposes of the actual contribution percentage test and other requirements of Code Section 401(m).
13. Section 5.04 is amended by adding the following new Subsection 5.04(e):
(e) Inapplicability of Top Heavy Plan Rules. The provisions of this Section 5.04 and Code Section 416 shall not apply in any Plan Year beginning after December 31, 2001, in which the Plan consists solely of Salary Reduction Contributions which meet the requirements of Code Section 401(k)(12) and Safeharbor Matching Contributions which meet the requirements of Code Section 401(m)(11).
14. Section 6.03 is amended by adding the following at the end of said Section:
Effective with respect to distributions made on or after January 1, 2002, notwithstanding any other provisions to the contrary, distributions under this paragraph are permissible upon a Participant's severance of employment, regardless of when such severance of employment occurred. However, such distribution shall be subject to the other provisions of the Plan regarding distributions, other than the provisions that require separation from service before such amounts may be distributed.
15. Subsection 6.04(f)(1) and (2) are amended by striking said Subsections in their entirety and substituting in lieu thereof the following:
(1) "Eligible rollover distribution" means any distribution of all or any portion of the balance to the credit of the distributee, except that an eligible rollover distribution does not include: (i) any distribution that is one of a series of substantially equal periodic payments (not less than annually) made for the life (or life expectancy) of the distributee or the joint lives (or joint life expectancies) of the distributee and the distributee's designated Beneficiary, or for a specified period of ten (10) years or more; (ii) any distribution to the extent such distribution is required under Code Section 401(a)(9); (iii) the portion of any distribution that is not includable in gross income (determined without regard to the exclusion for net unrealized appreciation with respect to employer securities); (iv) for Plan Years beginning on or after January 1, 1999, any hardship distribution described in Code Section 401(k)(2)(B)(i)(IV), and (v) for distributions made after December 31, 2001, any in-service distribution made on account of hardship, if such hardship distributions are permitted under the Plan. For distributions made after December 31, 2001, after-tax contributions shall not be excluded from the definition of "eligible rollover distribution" pursuant to clause (iii) of the preceding sentence. However, any portion of an eligible rollover distribution attributable to after-tax contributions may be transferred only to an individual retirement account or annuity described in Code Section 408(a) or (b), or to a qualified defined contribution plan describe in Code Sections 401(a) or 403(a) that agrees to separately account for amounts so transferred, including separately accounting for the portion of such distribution which is includible in gross income and the portion of such distribution which is not so includible.
(2) "Eligible retirement plan" means any of the following that accepts the distributee's eligible rollover distribution: An individual retirement account described in Code Section 408(a), an individual retirement annuity described in Code Section 408(b), an annuity plan described in Code Section 403(a), a qualified trust described in Code Section 401(a), an annuity contract described in Code Section 403(b), or an eligible plan under Code Section 457(b) which is maintained by a state, political subdivision of a state and which agrees to account separately for amounts transferred into such plan from this Plan. The foregoing definition of an "eligible retirement plan" also shall apply in the case of an eligible rollover distribution to the surviving spouse, or to the spouse or former spouse who is an alternate payee under a Qualified Domestic Relations Order.
16. Section 6.06(a)(1) is amended by striking the second subparagraph (b) of said Section and substituting in lieu thereof the following:
(b) the Participant has obtained all distributions, other than hardship distributions, and all nontaxable loans currently available to him under all plans currently maintained by the Employers, including electing to receive all dividends to the extent currently available under section 7.02(i) hereof.
17. Section 6.06(a)( 1) is further amended by deleting the last paragraph of said Section and substituting in lieu thereof the following:
In the event of any withdrawal by a Participant pursuant to this subsection (1), such withdrawal shall terminate such Participant's Salary Reduction Contributions under Section 4.01 and his right to make contributions under all other employee plans maintained by the Employer until (i) in the case of Salary Reduction Contributions withdrawn and distributed hereunder in calendar year 2001, the first day of the first payroll period which commences at least six (6) months following the receipt of such withdrawal or until January 1, 2002, if later, and (ii) in the case of Salary Reduction Contributions withdrawn and distributed hereunder after December 31, 2001, the first day of the first payroll period which commences at least six (6) months following the receipt of such withdrawal. Withdrawal elections under this subsection (1) may be made at any time but not more frequently than once each calendar year.
18. Subsection 7.02(i) is amended by striking said Subsection and substituting in lieu thereof the following:
(i) Subject to the provisions of Section 7.02(k) and Sections 7.04 and 7.05 hereof, all dividends, income and other property received by the Trustee shall, to the extent practicable, be converted by the Trustee into cash and invested in Company Stock, provided, however, that the Board of Directors of the Company may, in its sole discretion and as of the date of declaration of any dividend paid with respect to Company Stock held in the Trust Fund, direct the Trustee (i) to apply such dividend to the repayment of an Exempt Loan, or (ii) at the election of the person then with an account under the Plan, either (A) to distribute such dividend to each person then with an account hereunder in accordance with the ratio of the balance of shares of Company Stock in such person's accounts (as of the date of declaration of such dividend) to such share balance in all such accounts (as of such date of declaration), or (B) to pay such dividend to the Plan to be reinvested in Company Stock for the benefit of such person's accounts.
The dividend election provided for in the preceding paragraph may be made at any time during the period beginning on the first business day on or after the dividend record date and ending at the time specified by the Committee on the last business day preceding the dividend payout date. Any dividend election made hereunder shall remain in effect until subsequently changed in accordance with the provisions of this Section. If an individual entitled to make an election hereunder fails to make such an election, and no previous election has been made by such individual, he or she shall be deemed to have elected to have such dividend paid to the Plan to be reinvested in Company Stock for the benefit of such person's accounts.
If a currently employed Participant elects to receive payment of a dividend in cash, such payment shall be made either (a) directly to the Participant by his Employer, or (b) directly to the Participant by the Company's stock registrar. To the extent that a dividend is paid to a Participant (or, if applicable, his Beneficiary) who is not actively employed by an Employer, such payment shall be made to the Participant either (a) directly to the Participant by his Employer, or (b) directly to the Participant by the Company's stock registrar.
IN WITNESS WHEREOF, the Company has caused this AMENDMENT NO. FIVE TO THE ATMOS ENERGY CORPORATION EMPLOYEE STOCK OWNERSHIP PLAN AND TRUST EFFECTIVE JANUARY 1, 1999 to be executed in its name on its behalf this 15th day of April, 2002, effective as of the 31st day of December, 2001.
By: /s/ ROBERT W. BEST
-------------------------------------
Robert W. Best
Chairman of the Board, President and
Chief Executive Officer
|
ATTEST:
/s/ SHIRLEY A. HINES ------------------------------------ |
ATTEST:
By: /s/ LAURIE M. SHERWOOD
/s/ SHIRLEY A. HINES -------------------------------------
------------------------------------ Laurie M. Sherwood
By: /s/ TOM S. HAWKINS, JR.
-------------------------------------
Tom S. Hawkins, Jr.
By: /s/ RONALD W. MCDOWELL
-------------------------------------
Ronald W. McDowell
By: /s/ WYNN MCGREGOR
-------------------------------------
Wynn McGregor
By: /s/ GORDON J. ROY
-------------------------------------
Gordon J. Roy
|
WHEREAS, ATMOS ENERGY CORPORATION (the "Company") has heretofore amended and restated the Atmos Energy Corporation Employee Stock Ownership Plan and Trust Effective January 1, 1999 (the "Plan"); and
WHEREAS, pursuant to the provisions of Section 10.01 of the Plan, the Company desires to amend the Plan in certain respects as hereinafter provided.
NOW, THEREFORE, Atmos Energy Corporation does hereby amend the Plan, effective as of the day and year hereinafter set forth, except as otherwise provided herein, as follows:
1. Article I is amended by striking the last recital of said Article and substituting in lieu thereof the following:
WHEREAS, it is intended that the Plan continue to satisfy the requirements of Sections 401(a), 401(k), 501(a) and 4975(e) of the Internal Revenue Code of 1986, as amended (the "Code"), and the requirements of the Employee Retirement Income Security Act of 1974 (hereinafter, "ERISA"), including, but not limited to, ERISA Section 404(c);
2. Section 2.01(s) is amended by striking said Section and substituting in lieu thereof the following:
(s) FIDUCIARIES: Any person who exercises any discretionary authority or discretionary control respecting the management of the Plan, assets held under the Plan, or disposition of Plan assets; who renders investment advice for a fee or other compensation, direct or indirect, with respect to assets held under the Plan or has any authority or responsibility to do so; or who has any discretionary authority or discretionary responsibility in the administration of the Plan shall be treated as a Fiduciary hereunder. Any person who exercises authority or has responsibility of a fiduciary nature as described above shall be considered a Fiduciary under the Plan. Notwithstanding the foregoing, neither a Participant nor a Beneficiary shall be considered a Fiduciary with respect to the Plan by reason of his exercise of control over the assets held in his individual account pursuant to Section 7.05 hereof. In general the Employers, the Committee, and the Trustee shall be Fiduciaries hereunder, but only with respect to the specific responsibilities of each for Plan and Trust administration, all as described in Section 8.01.
3. Section 2.01 (dd) is amended by striking said Section and substituting in lieu thereof the following:
(dd) PLAN: ATMOS ENERGY CORPORATION RETIREMENT SAVINGS PLAN AND TRUST, as set forth in this document and as it may be amended from time to time.
4. The introductory paragraph to Section 5.04 is amended by striking said paragraph and substituting in lieu thereof the following:
The following provisions shall become effective in any Year in which either the ESOP portion or the Non-ESOP portion of the Plan is determined to be a Top-Heavy Plan:
5. Section 5.04(a) is amended by striking the introductory sentence of said Section and substituting in lieu thereof the following:
The ESOP portion or the Non-ESOP portion of the Plan will be considered a Top-Heavy Plan for the Plan Year if as of the last day of the preceding Plan Year (the "determination date"):
6. Section 5.04(a)(1) is amended by striking said Section and substituting in lieu thereof the following:
(1) [1] the value of the sum of the ESOP portion or the Non-ESOP portion (as the case may be) of the Employer Contribution Accounts, Salary Reduction Contribution Accounts, Safe harbor Matching Contribution Accounts, plus Employee Contribution Accounts (but not including any allocations to be made as of such last day of the Plan Year except contributions actually made on or before that date and allocated pursuant to Sections 5.02(b) and (c)) of Participants who are Key Employees (as defined below) exceeds 60% of the value of the sum of the ESOP portion or the Non-ESOP portion (as the case may be) of the Employer Contribution Accounts, Salary Reduction Contribution Accounts, Safe harbor Matching Contribution Accounts, plus Employee Contribution Accounts (but not including any allocations to be made as of such last day of the Plan Year except contributions actually made on or before that date and allocated pursuant to Sections 5.02(b) and (c)) of all Participants and their Beneficiaries (the "60% Test"), or [2] the applicable portion of the Plan is part of a required aggregation group (within the meaning of Code Section 4l6(g)(2)) and the required aggregation group is top-heavy. However, and notwithstanding the results of the 60% Test, the ESOP portion or the Non-ESOP portion (as the case may be) of the Plan shall not be considered a Top-Heavy Plan for any Plan Year in which the applicable portion of the Plan is a part of a required or permissive aggregation group (within the meaning of Code Section 416(g)(2)) which is not top-heavy. For purposes of the 60% Test for any Plan Year, (i) the value of the Employer Contribution Accounts, Safe harbor Matching Contribution Accounts, Salary Reduction Contribution Accounts, and Employee Contribution Accounts of individuals who are former Key Employees shall not be taken into account and (ii) the value of the Employer Contribution Accounts, Safe harbor Matching Contribution Accounts, Salary Reduction Contribution Accounts, and Employee Contribution Accounts of individuals who have not performed services for an Employer for the five (5)-year period ending on the determination date shall not be taken into account.
Notwithstanding the foregoing, for purposes of the 60% Test for any Plan Year beginning after December 31, 2001, the following shall apply:
(i) The present values of accrued benefits and the amounts of account balances of an employee as of the determination date shall be increased by the distributions made with respect to the employee under the ESOP portion or the Non-ESOP portion (as the case may be) of the Plan and any plan aggregated with such portion of the Plan under Code Section 416(g)(2) during the 1-year period ending on such determination date. The preceding sentence shall also apply to distributions under a terminated plan which, had it not been terminated, would have been aggregated with the applicable portion of the Plan under Code Section 416(g)(2)(A)(i). In the case of a distribution made for a reason other than separation of service, death or disability, this provision shall be applied by substituting "5-year period" for "1-year period."
(ii) The accrued benefits and accounts of any individual who has not performed services for the Employer during the 1-year period ending on the determination date shall not be taken into account.
7. Section 5.04(b) is amended by striking the first paragraph of said Section and substituting in lieu thereof the following:
(b) Minimum Allocations. Notwithstanding the provisions of Section 5.02(b) and (c), for any Year during which either the ESOP portion of the Plan or the Non-ESOP portion of the Plan is deemed a Top-Heavy Plan, the amount of Employer contribution for the Year to be allocated in the aggregate to the Safeharbor Matching Contribution Account and Employer Contribution Account of each Participant who is not a Key Employee shall not be less than the lesser of (i) three percent (3%) of the Participant's total compensation for the Plan Year or (ii) the Participant's total compensation for the Plan Year multiplied by the highest percentage obtained by dividing the amount of Employer contribution allocated in the aggregate to the Salary Reduction Contribution Account, Safeharbor Matching Contribution Account and the Employer Contribution Account of any Key Employee for the Year by so much of the total compensation of such Key Employee for the Year as does not exceed $200,000 (as automatically increased in accordance with the applicable treasury regulations); provided, however, that the requirement of this subsection (b) shall not apply to the extent that the minimum allocations set forth herein are made under another defined contribution plan maintained by the Employer, provided, further, that the minimum allocations required herein shall be offset by any minimum benefit provided under a defined benefit plan maintained by an Employer.
8. Section 5.04(c) is amended by striking said Section and substituting in lieu thereof the following:
(c) Super Top-Heavy Rules. For any Plan Year in which either the ESOP portion of the Plan or the Non-ESOP portion of the Plan is a Top-Heavy Plan, Section 5.04(a) shall be read by substituting the number "90" for the number "60" wherever it appears therein; provided, however, that where the applicable portion of the Plan is not a "Super" Top-Heavy Plan (as defined in Code Section 416(h)(2)(B)), no such substitution shall occur if, for such Plan Year, the minimum allocations determined pursuant to subsection (b) of this Section are determined by reference to 4%, in lieu of 3%, of total compensation.
9. Section 6.04(d) is amended by striking said Section and substituting in lieu thereof the following:
(d) Form of Distribution. Distributions hereunder to Participants, Former Participants or Beneficiaries may be in the form of Company Stock or cash, as determined by the Committee; provided, however, that any such distributee shall have the right to demand that distribution of the ESOP portion of a Participant's account balances (as provided for in Section 7.02(a) hereof) be made to him in the form of Company Stock and shall have been given written notification of such right by the Committee prior to the date of any cash distribution to him; provided, further, that fractional shares shall, in all events, be paid in cash. In the event that the Articles of Incorporation or bylaws of the Company are amended to restrict the ownership of substantially all outstanding shares of Company Stock to Employees and/or to the Trust Fund, then distributions hereunder to Participants, Former Participants and Beneficiaries shall, in all events, be in the form of cash. Subject to the provisions of subsection (e) below, a Participants benefits shall in all events be distributed in a lump sum.
Unless the Participant elects otherwise, the ESOP portion of a Participant's accounts which consists of Company Stock acquired after 1986 shall be distributed in a form providing no more than substantially equal periodic payments (not less frequently than annually) over a period not longer than the greater of (i) five (5) years, or (ii) in the case of a Participant whose accounts consisting of Company Stock acquired after 1986 exceed $500,000 (as automatically increased in accordance with the applicable treasury regulations to reflect cost-of-living adjustments), five (5) years, plus an additional one (1) year (up to an additional five (5) years) for each $100,000 (as automatically increased in accordance with treasury regulations to reflect cost-of-living adjustments) or fraction thereof by which the balance exceeds $500,000 (as automatically increased in accordance with the applicable treasury regulations to reflect cost-of-living adjustments). For purposes of this Section 6.04, the ESOP portion of a Participant's accounts shall not include Company Stock acquired with the proceeds of an Exempt Loan until the last day of the Plan Year in which such Exempt Loan is repaid in full.
10. Section 7.02(a) is amended by striking said Section and substituting in lieu thereof the following:
(a) There are two portions of the Plan: One portion, consisting of all of the Plan's investments at any time and from time to time in Company Stock, is specifically designated as an "employee stock ownership plan" within the meaning of Code Section 4975(e)(7) and is referred to in the Plan as the "ESOP portion"; the other portion, consisting of the Plan's investments at any time and from time to time in any investment other than Company Stock (including, but not limited to investments in any Diversified Fund, as defined in Section 7.05(b) hereof), is referred to in the Plan as the "Non-ESOP portion." If and to the extent a Participant's accounts are invested at any time and from time to time in Company Stock, then that portion of such accounts shall constitute the ESOP portion, and to the extent a Participant's accounts are invested at any time and from time to time in investments other than Company Stock, that portion of such accounts shall constitute the Non-ESOP portion. Accordingly, and subject to the provisions of subsections (i) and (k) of this Section and Section 7.04 hereof the Trustee shall invest the ESOP portion of the Trust Fund in Company Stock. The Trustee may use the funds contributed by an Employer to purchase Company Stock from the Company or from any shareholder of the Company at a price to be determined in accordance with subsection (e) below. Such stock may be treasury stock which has been purchased by the Company or it may be stock which has been authorized but never issued by the Company. The Trustee shall invest the Non-ESOP portion of the Trust Fund in common stocks of other corporations, preferred stocks, bonds, debentures, mortgages, notes, investment trust shares or in any other property, real or personal. The Trustee may invest any part of the Non-ESOP portion of the Trust Fund in a common trust fund maintained by any state or national bank or trust company in Texas or any other state of the United States specifically for investments by qualified employee benefit trusts or in shares of a registered investment company, including, but not limited to mutual funds, provided that such shares constitute securities described in ERISA Section 401(b)(l). The Trustee shall be obliged only to use good faith and to exercise its honest judgment as to what investments in the Non-ESOP portion of the Plan are from time to time for the best interest of the Trust Fund and those entitled to benefit hereunder. Furthermore, the Trustee may hold any portion of the Trust Fund in cash and uninvested whenever it deems such holding necessary or advisable.
11. Section 7.02(g) is amended by striking said Section and substituting in lieu thereof the following:
(g) So long as Company Stock is publicly traded, each Participant or Beneficiary in the Plan shall have the right to direct the Trustee as to the manner in which voting rights with respect to any such Company Stock allocated to his accounts are to be exercised and, to the extent that such Company Stock is attributable to the Participant's investment direction under Section 7.05(a) hereof, shall have the right ("tender rights") to instruct the Trustee whether or not to tender, exchange, sell or otherwise dispose of Company Stock in the event of a tender offer, exchange offer or other offer for Company Stock ("Offer"). If Company Stock is not, or ceases to be, publicly traded, then normally the Trustee will have the right to vote all of such Stock then held by the Trustee hereof, provided, however, that each Participant or Beneficiary in the Plan shall be entitled to direct the Trustee as to the manner in which the voting rights under any Company Stock which is allocated to his accounts are to be exercised with respect to any corporate merger or consolidation, recapitalization, reclassification, liquidation, dissolution, sale of substantially all of an Employer's assets or such similar transaction as the Secretary of the Treasury may prescribe in regulations, provided, further, that effective for votes after October 22, 1986, each such Participant or Beneficiary shall be entitled to cast one vote on a given transaction described above, and the Trustee shall be required to vote the Company Stock allocated to such accounts in proportion to the results of the votes cast on the transaction by the Participants or Beneficiaries. Whenever a Participant or Beneficiary has voting rights or tender rights hereunder, the Trustee shall give written notice of such impending vote or Offer as soon as practicable after receiving notice thereof, which notice shall explain the matter to be decided or the Offer and provide each Participant or Beneficiary with a ballot to indicate his vote on such matter or a form for exercising his tender right, as the case may be. If any Participant or Beneficiary fails to notify the Trustee in writing of the manner in which such Participant or Beneficiary desires for his vote or tender rights to be exercised, then the Trustee shall exercise the voting or tender rights with respect to such stock in accordance with its best judgment, taking into account instructions from the Committee. Any Company Stock which has not been allocated to the accounts of the Participants or Beneficiaries shall be voted by the Trustee in accordance with its best judgment, taking into account instructions from the Committee. Reasonable means shall be employed by the Trustee to provide confidentiality with respect to the voting or tender rights exercised by Participants, such that the Participants' directions will be held in confidence and not divulged or released to any Employer or any director, officer, employee or agent of an Employer, it being the intent of this provision of this Section to ensure that the Employers (and their directors, officers, employees and agents) cannot determine the direction given by any Participant.
12. Section 7.02(h) is amended by striking the first sentence of said Section and substituting in lieu thereof the following:
Subject to the provisions of subsections (i) and (k) of this Section 7.02 and Sections 7.04 and 7.05 hereof, any cash received by the Trustee shall be invested by the Trustee in Company Stock.
13. Section 7.02(i) is amended by striking the first two paragraphs of said Section and substituting in lieu thereof the following:
Subject to the provisions of Section 7.02(k) and Sections 7.04 and 7.05
hereof, all dividends, income and other property received by the
Trustee shall, to the extent practicable, be converted by the Trustee
into cash and invested in Company Stock, provided, however, that the
Board of Directors of the Company may, in its sole discretion and as of
the date of declaration of any dividend paid with respect to Company
Stock held in the ESOP portion of the Trust Fund, direct the Trustee
(i) to apply such dividend to the repayment of an Exempt Loan or (ii)
at the election of the person then with an account under the ESOP
portion of the Plan either (A) to distribute such dividend to each
person then with an account hereunder in accordance with the ratio of
the balance of shares of Company Stock in such person's accounts (as of
the date of declaration of such dividend) to such share balance in all
such accounts (as of such date of declaration), or (B) to pay such
dividend to the ESOP portion of the Plan to be reinvested in Company
Stock for the benefit of such person's accounts.
The dividend election provided for in the preceding paragraph may be made at any time during the period beginning on the first business day on or after the dividend record date and ending at the time specified by the Committee on the last business day preceding the dividend payout date. Any dividend election made hereunder shall remain in effect until subsequently changed in accordance with the provisions of this Section. If an individual entitled to make an election hereunder fails to make such an election, and no previous election has been made by such individual, he or she shall be deemed to have elected to have such dividend paid to the ESOP portion of the Plan to be reinvested in Company Stock for the benefit of such person's accounts.
14. Section 7.02(j) is amended by striking said Section and substituting in lieu thereof the following:
(j) At least once a Year the Committee shall furnish each Participant with a statement showing the status of his accounts as of the close of the preceding Year, including the share of the cost (including brokerage commissions, transfer taxes, and other incidental expenses) properly allocable to his accounts, of any Company Stock in the ESOP portion of the Plan acquired by purchase during that Year.
15. Section 7.02(k) is amended by striking the first sentence of said Section and substituting in lieu thereof the following:
The Trustee may borrow reasonable sums of money for the purchase of Company Stock for the ESOP portion of the accounts of Participants on such terms as the Trustee shall deem reasonable, provided that the proceeds of such loans shall be used solely for the purchase of Company Stock.
16. Section 7.02(k)(l) is amended by striking the last sentence of said Section and substituting in lieu thereof the following:
Except as provided under Article xiii of the Plan, no Loan Securities may be subject to a put, call or other option, or buy-sell or similar arrangement while held by and when distributed from this Plan, whether or not the ESOP portion of this Plan is then an employee stock ownership plan.
17. Section 7.04(a) is amended by striking the first full paragraph of said Section and substituting in lieu thereof the following:
In General. Notwithstanding the preceding provisions of this Article VII, a Qualified Participant may, during each Election Period occurring within his Qualified Election Period, elect that a part of the ESOP portion of his aggregate account balances (with such balances determined as of the beginning of each Election Period) be alternatively invested pursuant to Section 7.05 hereof in the Diversified Funds described in such section. The amount of the ESOP portion of the Qualified Participant's aggregate account balances available for such alternative investment shall be one hundred percent (100%) of such aggregate balances consisting of Company Stock acquired after 1986, reduced by amounts previously so invested, either pursuant to this Section or Section 7.05 hereof.
18. Section 7.05(a) is amended by striking said Section and substituting in lieu thereof the following:
(a) In General. Notwithstanding the preceding provisions of this Article VII,
a Participant or Beneficiary shall have the right, in accordance with the provisions
of this Section 7.05, to direct the Trustee as to the investment of (i) his
Salary Reduction Contribution Account, (ii) any rollover contributions, any
amounts in his United Cities Plan employer matching contribution subaccount
pursuant to Section 3.05(b)(2) hereof other than amounts attributable to United
Cities Plan additional matching contributions (the "United Cities Plan
Matching Subaccount") and any amounts in his SEC Plan rollover contribution
subaccount and SEC Plan employer matching contribution subaccount pursuant to
Section 3.06(b)(3) and Section 3.06(b)(4) hereof (the "SEC Plan Rollover
and Matching Subaccounts"), held in his Employer Contribution Account,
and (iii) any amounts in his Employee Contribution Account attributable to SEC
Plan after-tax contributions pursuant to
Section 3.06(b)(2) hereof (the "SEC Plan Employee Contribution Account").
Any such investment direction by a Participant or Beneficiary shall consist
solely of the right to direct the extent to which Salary Reduction Contributions,
rollover contributions, amounts in his United Cities Plan Matching Subaccount,
if any, amounts in his SEC Plan Rollover and Matching Subaccounts, if any, amounts
in his SEC Plan Employee Contribution Account, if any, shall be invested either
in the ESOP portion of the Plan, or in the Non-ESOP portion of the Plan which
consists of various investment media comprising a Diversified Fund. Such investment
directions shall be made in accordance with procedures established by the Committee
and the requirements of Department of Labor Regulations Section 2550.404c-l(b)(2)(i)(A),
or any successor thereto. Should a Participant or Beneficiary fail to provide
the Trustee with the investment directions described herein as to any Salary
Reduction Contribution or rollover contribution or amounts in his United Cities
Plan Matching Subaccount, amounts in his SEC Plan Rollover and Matching Subaccounts,
if any, and amounts in his SEC Plan Employee Contribution Account, if any, such
contribution or amount shall be invested in the Diversified Fund which constitutes
a balanced fund of equity and fixed income, as selected by the Trustee. The
Trustee may decline to implement instructions by a Participant or Beneficiary
which (i) would result in a prohibited transaction described in Code Section
4975 or ERISA Section 406 and which would generate income that would be taxable
to the Plan, or (ii) are described in Department of Labor Regulations Section
2550.404c-l (d)(2)(ii), or any successor thereto.
19. Section 7.05(c) is amended by striking said Section and substituting in lieu thereof the following:
(c) Limitation. It is expressly understood that the only amounts eligible for investment hereunder in the Diversified Fund are the amounts described in this Section and in Section 7.04 hereof. Any amounts described in this Section and Section 7.04 hereof that are invested in Company Stock shall be eligible for investment in the Diversified Fund as of any Valuation Date.
20. Section 7.05(d) is amended by deleting the last sentence of said Section.
21. Section 8.02 is amended by striking the first sentence of said Section and substituting in lieu thereof the following:
The Plan shall be administered by a Retirement Savings Committee (the "Committee") consisting of at least three persons who shall be appointed by and serve at the pleasure of the Board of Directors of the Company.
22. Section 8.05 is amended by adding a new Subsection (h) to said Section as follows:
(h) to take such actions as may be necessary to comply in all respects with the requirements of ERISA Section 404(c) and the regulations thereunder.
23. The introductory sentence to Article XIII is amended by striking said sentence and substituting in lieu thereof the following:
The following rules will apply to Company Stock under the ESOP portion of the Plan which is distributed hereunder.
24. Article XIII, subparagraph (f) is amended by striking said subparagraph and substituting in lieu thereof the following:
(f) Notwithstanding the fact that the ESOP portion of this Plan ceases to be an employee stock ownership plan, Loan Securities and any Company Stock acquired after 1986 shall continue to be subject to the provisions of this Article XTTI. IN WITNESS WHEREOF, the Company has caused this AMENDMENT NO. SIX TO THE ATMOS ENERGY CORPORATION EMPLOYEE STOCK OWNERSHIP PLAN AND TRUST EFFECTIVE JANUARY 1, 1999 to be executed in its name on its behalf this 15th day of April, 2002, effective as of the 1st day of March, 2002.
By: /s/ ROBERT W. BEST
-------------------------------------
Robert W. Best
Chairman of the Board, President and
Chief Executive Officer
|
ATTEST:
/s/ SHIRLEY A. HINES ------------------------------------ |
ATTEST:
By: /s/ LAURIE M. SHERWOOD
/s/ SHIRLEY A. HINES -------------------------------------
------------------------------------ Laurie M. Sherwood
By: /s/ TOM S. HAWKINS, JR.
-------------------------------------
Tom S. Hawkins, Jr.
By: /s/ RONALD W. MCDOWELL
-------------------------------------
Ronald W. McDowell
By: /s/ WYNN D. MCGREGOR
-------------------------------------
Wynn D. McGregor
By: /s/ GORDON J. ROY
-------------------------------------
Gordon J. Roy
|
We consent to the incorporation by reference in the Registration Statement (Form S-8 No. 333-63738 and Form S-8 No. 33-57687) pertaining to the Atmos Energy Corporation Employee Stock Ownership Plan and Trust of our report dated June 26, 2002, with respect to the financial statements and supplemental schedules of the Atmos Energy Corporation Employee Stock Ownership Plan and Trust included in this Annual Report (Form 11-K) for the year ended December 31, 2001.
Dallas, Texas
June 26, 2002