As filed with the Securities and Exchange Commission on August 31, 2007
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ATMOS ENERGY CORPORATION
(Exact Name of Registrant as Specified in its Charter)
| Texas and Virginia | 75-1743247 | |
|
(State or Other Jurisdiction of Incorporation or Organization) |
(I.R.S. Employer Identification No.) |
1800 Three Lincoln Centre
5430 LBJ Freeway
Dallas, Texas 75240
(972) 934-9227
(Address of Principal Executive Offices and Zip Code)
Atmos Energy Corporation
1998 Long-Term Incentive Plan
(Full Title of the Plan)
Louis P. Gregory
Senior Vice President and General Counsel
Atmos Energy Corporation
1800 Three Lincoln Centre
5430 LBJ Freeway
Dallas, Texas 75240
(Name and Address of Agent for Service)
CALCULATION OF REGISTRATION FEE
| Title of Each Class of Securities to be Registered |
Amount to be
Registered (1) |
Proposed
Maximum Offering Price Per Share (2) |
Proposed
Maximum Aggregate Offering Price (2) |
Amount of
Registration Fee |
|||||||
|
Common stock, no par value(3) |
2,500,000 | $ | 27.83 per share | $ | 69,575,000 | $ | 2,136 | ||||
| (1) | Pursuant to Rule 416 under the Securities Act of 1933, this registration statement covers, in addition to the number of shares of common stock, no par value, stated above, such additional shares as may be issued as a result of the antidilution provisions of the registrant’s 1998 Long-Term Incentive Plan (the “Plan”). |
| (2) | Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457 (subsections (c) and (h)) under the Securities Act of 1933 on the basis of the average of the high and low prices of the registrant’s common stock as reported by the New York Stock Exchange on August 28, 2007. |
| (3) | Includes, with respect to each share of common stock, rights pursuant to the registrant’s Rights Agreement, dated as of November 12, 1997, as amended, between the registrant and the rights agent named therein. Until any triggering event under the Rights Agreement occurs, the rights trade with, and cannot be separated from, the common stock. |
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The following documents filed by Atmos Energy Corporation (“Atmos Energy”) are incorporated by reference, as of their respective dates, in this registration statement:
| (1) | Atmos Energy’s Annual Report on Form 10-K for the fiscal year ended September 30, 2006; |
| (2) | Atmos Energy’s Quarterly Reports on Form 10-Q for the quarters ended December 31, 2006, March 31, 2007 and June 30, 2007; |
| (3) | Atmos Energy’s Current Reports on Form 8-K filed with the Commission on October 20, 2006, November 13, 2006, December 4, 2006, December 12, 2006, December 19, 2006, February 9, 2007, April 3, 2007, May 2, 2007 (only with respect to Items 5.03 and 8.01) and June 14, 2007; |
| (4) | Atmos Energy’s Definitive Proxy Statement for the 2007 Annual Meeting of Shareholders, filed with the Commission on December 26, 2006; and |
| (5) | The description of Atmos Energy’s common stock contained in our Registration Statement on Form S-3ASR (File No. 333-139093), filed with the Commission on December 4, 2006, and any document filed that updates that description. |
In addition, all documents subsequently filed by Atmos Energy pursuant to Section 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as amended, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all such securities then remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be a part hereof from the date of filing of such documents. Any statement contained in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document, which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
| Item 5. | Interests of Named Experts and Counsel. |
Louis P. Gregory, who has delivered to Atmos Energy a legal opinion regarding the validity of the shares of common stock registered pursuant to this registration statement, is Senior Vice President and General Counsel of Atmos Energy. Mr. Gregory has been granted under the Plan a total of 40,427 restricted shares of common stock and performance-based restricted stock units along with a total of 89,997 nonqualified stock options, all in connection with his employment at Atmos Energy. Mr. Gregory will continue to receive grants of any securities approved by the Board of Directors as long as he is employed by Atmos Energy and is a participant in the Plan.
| Item 6. | Indemnification of Directors and Officers. |
The Texas Business Corporation Act and the Virginia Stock Corporation Act permit, and in some cases require, corporations to indemnify directors and officers who are or have been a party or are threatened to be made a party to litigation against judgments, penalties, including excise and similar taxes, fines, settlements and reasonable expenses under certain circumstances. Article IX of our articles of incorporation and Article IX of our bylaws provide for indemnification of judgments, penalties, including excise and similar taxes, fines, settlements and reasonable expenses and the advance payment or reimbursement of such reasonable expenses to directors and officers to the fullest extent permitted by law.
As authorized by Article 2.02-1 of the Texas Business Corporation Act, and Section 13.1-697 of the Virginia Stock Corporation Act, each of our directors and officers may be indemnified by us against expenses, including attorney’s fees, judgments, fines and amounts paid in settlement, actually and reasonably incurred in connection with the defense or settlement of any threatened, pending or completed legal proceedings in which he is involved by reason of the fact that he is or was a director or officer of ours if he acted in good faith and in a manner that he reasonably believed to be in or not opposed to our best interests, and, with respect to any criminal action or proceeding, if he had no reasonable cause to believe that his conduct was unlawful. In each case, such indemnity shall be to the fullest extent authorized by the Texas Business Corporation Act and the Virginia Stock Corporation Act. If the director or officer is found liable for willful or intentional misconduct in the performance of his duty to us, then indemnification will not be made.
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Article X of our articles of incorporation provides that no director shall be personally liable to us or our shareholders for monetary damages for any breach of fiduciary duty as a director except for liability:
| • |
for any breach of duty of loyalty to us or our shareholders, |
| • |
for an act of omission not in good faith or which involves intentional misconduct or a knowing violation of the law, |
| • |
for a transaction from which the director received an improper benefit, whether or not the benefit resulted from an action taken within the scope of the director’s office, |
| • |
for an act or omission for which the liability of a director is expressly provided by statute, or |
| • |
for an act related to an unlawful stock repurchase or payment of a dividend. |
In addition, Article IX of our articles of incorporation and Article IX of our bylaws require us to indemnify to the fullest extent authorized by law any person made or threatened to be made party to any action, suit or proceeding, whether criminal, civil, administrative, arbitrative or investigative, by reason of the fact that such person is or was a director or officer of ours or serves or served at our request as a director, officer, partner, venturer, proprietor, trustee, employee, agent or similar functionary of any other enterprise.
We maintain an officers’ and directors’ liability insurance policy insuring officers and directors against certain liabilities, including liabilities under the Securities Act of 1933. The effect of such policy is to indemnify such officers and directors against losses incurred by them while acting in such capacities.
| Item 8. | Exhibits. |
See Index to Exhibits, which is incorporated herein by reference.
| Item 9. | Undertakings. |
| A. | The undersigned registrant hereby undertakes: |
| (1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
| (i) | To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933; |
| (ii) | To reflect in the prospectus any facts or events arising after the effective date of this registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in this registration statement; and |
| (iii) | To include any material information with respect to the plan of distribution not previously disclosed in this registration statement or any material change to such information in this registration statement; provided, however , that the undertakings set forth in paragraphs (i) and (ii) above do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic or current reports filed with or furnished to the SEC by the registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. |
| (2) | That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| (3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
| B. | The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in this registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
| C. |
Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has |
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been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. |
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Dallas, State of Texas, on August 31, 2007.
| ATMOS ENERGY CORPORATION | ||
| By: |
/s/ JOHN P. REDDY |
|
| John P. Reddy | ||
| Senior Vice President | ||
| and Chief Financial Officer | ||
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints Robert W. Best and John P. Reddy, or either of them acting alone or together, as his true and lawful attorney-in-fact and agent, for him and in his name, place, and stead, in any and all capacities, to sign any and all amendments to this registration statement, including post-effective amendments, and to file the same, with all exhibits thereto, and all other documents in connection therewith, with the Securities and Exchange Commission, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact and agent may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed by the following persons in the capacities and on the dates indicated.
|
Signature |
Title |
Date | ||
|
/s/ ROBERT W. BEST Robert W. Best |
Chairman, President and CEO (Principal Executive Officer) |
August 31, 2007 | ||
|
/s/ JOHN P. REDDY John P. Reddy |
Senior Vice President and Chief Financial Officer (Principal Financial Officer) |
August 31, 2007 | ||
|
/s/ F.E. MEISENHEIMER F.E. Meisenheimer |
Vice President and Controller (Principal Accounting Officer) |
August 31, 2007 | ||
|
/s/ TRAVIS W. BAIN II Travis W. Bain II |
Director | August 31, 2007 | ||
|
/s/ DAN BUSBEE Dan Busbee |
Director | August 31, 2007 | ||
|
/s/ RICHARD W. CARDIN Richard W. Cardin |
Director | August 31, 2007 | ||
|
/s/ THOMAS J. GARLAND Thomas J. Garland |
Director | August 31, 2007 | ||
|
/s/ RICHARD K. GORDON Richard K. Gordon |
Director | August 31, 2007 | ||
|
/s/ THOMAS C. MEREDITH Thomas C. Meredith |
Director | August 31, 2007 | ||
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|
/s/ PHILLIP E. NICHOL Phillip E. Nichol |
Director | August 31, 2007 | ||
|
/s/ NANCY K. QUINN Nancy K. Quinn |
Director | August 31, 2007 | ||
|
/s/ STEPHEN R. SPRINGER Stephen R. Springer |
Director | August 31, 2007 | ||
|
/s/ CHARLES K. VAUGHAN Charles K. Vaughan |
Director | August 31, 2007 | ||
|
/s/ RICHARD WARE II Richard Ware II |
Director | August 31, 2007 | ||
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EXHIBIT INDEX
|
Exhibit No. |
Description |
|
|
4.1 |
Amended and Restated Articles of Incorporation of Atmos Energy Corporation (as of February 9, 2005) (previously filed as Exhibit 3(I) to Atmos Energy’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2005 and incorporated herein by reference) | |
|
4.2 |
Amended and Restated Bylaws of Atmos Energy Corporation as of May 2, 2007 (previously filed as Exhibit 3.1 to Atmos Energy’s Form 8-K dated May 2, 2007 and incorporated herein by reference) | |
|
4.3 |
Common Stock Certificate (Atmos Energy Corporation) (previously filed as Exhibit (4)(b) to Atmos Energy’s Annual Report on Form 10-K for the fiscal year ended September 30, 1988 and incorporated herein by reference) | |
|
4.4 |
Rights Agreement, dated as of November 12, 1997, between the Company and BankBoston, N.A., as Rights Agent (previously filed as Exhibit 4.1 to Atmos Energy’s Form 8-K dated November 12, 1997 and incorporated herein by reference) | |
|
4.5 |
First Amendment to Rights Agreement dated as of August 11, 1999, between the Company and BankBoston, N.A., as Rights Agent (previously filed as Exhibit 2 to Atmos Energy’s Form 8-A, Amendment No. 1, dated August 12, 1999 and incorporated herein by reference) | |
|
4.6 |
Second Amendment to Rights Agreement dated as of February 13, 2002, between the Company and EquiServe Trust Company, N.A., fka BankBoston, N.A., as Rights Agent (previously filed as Exhibit 4 to Atmos Energy’s Quarterly Report on Form 10-Q for the quarter ended December 31, 2001 and incorporated herein by reference) | |
|
4.7 |
Standstill Agreement, dated as of December 3, 2002, by and among Atmos Energy Corporation and the Shareholders of Mississippi Valley Gas Company (previously filed as Exhibit 99.3 to Atmos Energy’s Form 8-K/A, dated December 3, 2002 and incorporated herein by reference) | |
|
5 |
Opinion of Louis P. Gregory, Senior Vice President and General Counsel of Atmos Energy | |
|
15 |
Letter Regarding Unaudited Interim Financial Information | |
|
23.1 |
Consent of Ernst & Young LLP | |
|
23.2 |
Consent of Louis P. Gregory, Senior Vice President and General Counsel of Atmos Energy (contained in his opinion filed as Exhibit No. 5) | |
|
24 |
Power of Attorney (see signature pages of this Registration Statement) | |
|
99.1 |
Atmos Energy Corporation 1998 Long-Term Incentive Plan (as amended and restated February 9, 2007) (previously filed as Exhibit 10.2 to Atmos Energy’s Quarterly Report on Form 10-Q for the quarter ended March 31, 2007 and incorporated herein by reference) | |
|
99.2 |
Form of Non-Qualified Stock Option Agreement under the Atmos Energy Corporation 1998 Long-Term Incentive Plan (previously filed as Exhibit 10.16(b) to Atmos Energy’s Annual Report on Form 10-K for the fiscal year ended September 30, 2005 and incorporated herein by reference) | |
|
99.3 |
Form of Award Agreement of Restricted Stock with Time-Lapse Vesting under the Atmos Energy Corporation 1998 Long-Term Incentive Plan (previously filed as Exhibit 10.16(c) to Atmos Energy’s Annual Report on Form 10-K for the fiscal year ended September 30, 2005 and incorporated herein by reference) | |
|
99.4 |
Form of Award Agreement of Performance-Based Restricted Stock Units under the Atmos Energy Corporation 1998 Long-Term Incentive Plan (previously filed as Exhibit 10.16(d) to Atmos Energy’s Annual Report on Form 10-K for the fiscal year ended September 30, 2005 and incorporated herein by reference) | |
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Exhibit 5
August 30, 2007
Atmos Energy Corporation
1800 Three Lincoln Centre
5430 LBJ Freeway
Dallas, Texas 75240
| Re: | Registration Statement on Form S-8 |
Gentlemen:
I am Senior Vice President and General Counsel of Atmos Energy Corporation, a Texas and Virginia corporation (the “Company”), and have acted as counsel to the Company in connection with the preparation of a registration statement on Form S-8 to be filed with the Securities and Exchange Commission (the “Registration Statement”) with respect to the registration under the Securities Act of 1933, as amended (the “Act”), of 2,500,000 shares of common stock, no par value, of the Company (the “Shares”), which have been reserved for issuance from time-to-time pursuant to the Atmos Energy Corporation 1998 Long-Term Incentive Plan (the “Plan”).
For the purpose of rendering this opinion, I have made such factual and legal examination as I deemed necessary under the circumstances, and in that connection I have examined, among other things, originals or copies of the following:
| (1) | the Amended and Restated Articles of Incorporation of the Company; |
| (2) | the Amended and Restated Bylaws of the Company; |
| (3) | the Plan; |
| (4) | such records of the corporate proceedings of the Company, and such other documents that I considered necessary or appropriate for the purpose of rendering this opinion; and |
| (5) | such other certificates and assurances from public officials, officers and representatives of the Company that I considered necessary or appropriate for the purpose of rendering this opinion. |
In connection with my examination, I have assumed the genuineness of all signatures on, and the authenticity of, all documents submitted to me as originals and the conformity to original documents of all documents submitted to me as copies.
Atmos Energy Corporation
August 30, 2007
Page Two
On the basis of the foregoing examination, and in reliance thereon, I am of the opinion that the Shares, when issued pursuant to and in accordance with the provisions of the Plan, will be legally issued, fully paid and non-assessable.
This opinion is limited to the present laws of the State of Texas, the Commonwealth of Virginia and the present federal laws of the United States and to the present judicial interpretations thereof and to the facts as they presently exist. I undertake no obligation to advise you as a result of developments occurring after the date hereof or as a result of facts or circumstances brought to my attention after the date hereof.
This opinion may be filed as an exhibit to the Registration Statement. In giving this consent, I do not admit that I am included in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.
| Very truly yours, |
| /s/ LOUIS P. GREGORY |
| Louis P. Gregory |
| Senior Vice President and |
| General Counsel |
Exhibit 15
August 30, 2007
Board of Directors
Atmos Energy Corporation
We are aware of the incorporation by reference in the Registration Statement (Form S-8) of Atmos Energy Corporation for the registration of 2,500,000 shares of its common stock to be filed with the Securities and Exchange Commission pertaining to the 1998 Long-Term Incentive Plan of Atmos Energy Corporation of our reports dated February 5, 2007, May 2, 2007 and August 8, 2007 relating to the unaudited condensed consolidated interim financial statements of Atmos Energy Corporation that are included in its Quarterly Reports on Form 10-Q for the quarters ended December 31, 2006, March 31, 2007 and June 30, 2007, respectively.
/s/ ERNST & YOUNG LLP
Dallas, Texas
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
We consent to the incorporation by reference in the Registration Statement (Form S-8) of Atmos Energy Corporation for the registration of 2,500,000 shares of its common stock to be filed with the Securities and Exchange Commission pertaining to the 1998 Long-Term Incentive Plan of Atmos Energy Corporation of our reports dated November 20, 2006, with respect to the consolidated financial statements and schedule of Atmos Energy Corporation, Atmos Energy Corporation management’s assessment of the effectiveness of internal control over financial reporting, and the effectiveness of internal control over financial reporting of Atmos Energy Corporation, included in its Annual Report (Form 10-K) for the year ended September 30, 2006, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Dallas, Texas
August 30, 2007