EXHIBIT 10.3
AMENDMENT NO. 1 TO
THE ATMOS ENERGY CORPORATION
SUPPLEMENTAL EXECUTIVE BENEFITS PLAN
(Restated as of November 11, 1992)
WHEREAS, effective October 1, 1987, ATMOS ENERGY CORPORATION
(the "Employer") adopted THE ATMOS ENERGY CORPORATION
SUPPLEMENTAL EXECUTIVE BENEFITS PLAN (the "Plan"); and
WHEREAS, on November 11, 1992, the Employer restated the
Plan in its entirety; and
WHEREAS, pursuant to Section 9.1 of the Plan, the Employer
desires to amend the Plan as hereinafter set forth;
NOW, THEREFORE, the Plan shall be, and hereby is, amended,
effective as of the date this Amendment is executed, in the
following respects:
1. The first sentence of the definition of "Pension Plan"
in Section 2.1(j) of the Plan shall be, and hereby is, amended
and revised to read in its entirety as follows:
"The Employees' Retirement Plan of Atmos Energy Corporation,
the Western Kentucky Gas Retirement Plan, or the Greeley Gas
Company Employees' Pension Plan, whichever is applicable, as
amended from time to time."
2. Section 2.3 of the Plan shall be, and hereby is, amended
and revised to read in its entirety as follows:
"GOVERNING LAW: This Plan shall be construed in accordance
with and governed by the laws of the State of Texas except to the
extent otherwise preempted by the Employee Retirement Income
Security Act of 1974, as amended, or any other federal law."
3. Section 3.1 of the Plan shall be, and hereby is,
amended and revised to read in its entirety as follows:
"EMPLOYEES ELIGIBLE TO PARTICIPATE: All corporate officers
of the Employer elected by the Board of Directors (excluding any
assistant officers that may be elected from time to time) shall
participate in this Plan; provided, however, that all benefits
payable under this Plan are subject to the provisions of Section
9.5 hereof. Any Participant who ceases being a corporate officer
of the Employer during his employment with the Employer shall
immediately cease participation in this Plan except as otherwise
set forth in this Plan."
4. The first paragraph of Section 5.1 of the Plan shall be,
and hereby is, amended and revised to read in its entirety as
follows:
"Except as otherwise provided elsewhere in this Plan or in a
Participation Agreement entered into in the form attached to this
Plan as Exhibit C-2, if a Participant (i) has been a corporate
officer of the Employer for at least two years, (ii) has at least
five years of vesting service under the Pension Plan, and (iii)
has reached the age when he is eligible for the immediate
commencement of his Pension Plan benefit when his employment with
the Employer terminates, he shall be entitled to a monthly
Supplemental Pension calculated pursuant to Exhibit A-1 attached
hereto; provided, however, in no event shall the combined annual
payment from this Plan and the Pension Plan to any Participant
listed on the Minimum Benefit Schedule attached to this Plan as
Exhibit A be less than the minimum Annual Amount for such
Participant specified in the Minimum Benefit Schedule."
5. The first paragraph of Section 5.6 of the Plan shall be,
and hereby is, amended and revised to read in its entirety as
follows:
"Notwithstanding anything expressly or impliedly to the
contrary contained in this Plan, if, following a Change in
Control of the Employer, a Participant's employment is
terminated, or he is demoted or reassigned to a position that is
no longer a corporate officer position, for any reason other than
for Cause (as defined in Section 9.2 of this Plan), the
Participant shall nevertheless be entitled to receive a
Supplemental Pension at such time as he becomes entitled to
receive a benefit under the Pension Plan regardless of whether
the Participant has been a corporate officer for at least two
years or has five years of vesting service under the Pension Plan
at the time of such termination, demotion, or reassignment. Such
Supplemental Pension shall be calculated in the same manner as
set forth in Section 9.1 of this Plan for benefits payable in the
event of a termination of the Plan."
6. Section 6.3 of the Plan shall be, and hereby is, amended
and revised to read in its entirety as follows:
"COMMENCEMENT OF SUPPLEMENTAL PENSION: Notwithstanding the
requirement contained in Section 5.1 hereof that a Participant
have been a corporate officer of the Employer for at least two
years, have at least five years of vesting service under the
Pension Plan, and have reached the age when he is eligible for
the immediate commencement of his Pension Plan benefit when his
employment with Employer terminates, a Participant receiving a
Disability Pension hereunder will be eligible for a Supplemental
Pension under Article V hereof, provided his disability continues
until the commencement of the Supplemental Pension. However, all
applicable provisions of Article V relating to a reduction in the
amount of a Participant's Supplemental Pension shall apply to any
Supplemental Pension received hereunder unless the terms of the
Plan provide otherwise."
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7. The first sentence of the fourth paragraph of Section
9.1 of the Plan shall be, and hereby is, amended and revised to
read in its entirety as follows:
"In the event the Board of Directors terminates the Plan or
any portion thereof and such termination affects the Supplemental
Pension described in the Plan, a Participant's right to a
Supplemental Pension shall immediately vest regardless of whether
the Participant has been a corporate officer of the Employer for
at least two years or has five years of vesting service under the
Pension Plan."
8. The first paragraph of Section 9.2 shall be, and hereby
is, amended and revised to read in its entirety as follows:
"Nothing contained in this Plan shall be construed as a
contract of employment between the Employer and any employee, or
as a right of any employee to be continued in the employment of
the Employer, or as a limitation of the right of the Employer to
discharge any of its employees, with or without Cause. If a
Participant's employment with the Employer is terminated without
Cause or if the Participant's participation in the Plan is
terminated for any reason other than resignation or termination
of employment for Cause (except as otherwise provided in a
Participation Agreement entered into in the form attached hereto
as Exhibit C-2), the Participant shall be entitled to the
benefits payable under this Plan that have accrued prior to the
termination of employment or Plan participation. If such
termination occurs upon or after a 'Change in Control' (as
defined in Section 5.6 hereof), the Participant's right to a
Supplemental Pension shall immediately vest regardless of whether
the Participant has been a corporate officer of the Employer for
at least two years or has five years of vesting service under the
Pension Plan as of the date of such termination. The amount of
the benefits payable under this Plan to a Participant whose
employment with the Employer has been terminated without Cause or
whose participation in the Plan has been terminated for any
reason other than resignation or termination of employment for
Cause (except as otherwise provided in a Participation Agreement
entered into in the form attached hereto as Exhibit C-2) shall,
if such termination occurs upon or after a 'Change of Control'
(as defined in Section 5.6 hereof), be calculated in the same
manner as set forth in Section 9.1 above for benefits payable in
the event of a termination of the Plan. Notwithstanding any
provision to the contrary herein contained, if, prior to a
'Change of Control' (as defined in Section 5.6 hereof), a
Participant's employment with the Employer is terminated without
Cause or if the Participant's participation in the Plan is
terminated for any reason other than resignation or termination
of employment for Cause, then, except as otherwise provided in a
Participation Agreement entered into in the form attached hereto
as Exhibit C-2, the amount of the benefits payable under this
Plan to such Participant shall be calculated in the manner set
forth in Section 5.1 above and the Participant's right to a
Supplemental Pension shall vest only if the Participant has been
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a corporate officer of the Employer for at least two years and
has five years of vesting service under the Pension Plan as of
the date of such termination."
9. Exhibit B shall be, and hereby is, replaced with
Exhibit B attached to this Amendment.
10. Exhibit C-1 shall be, and hereby is, replaced with
Exhibit C-1 attached to this Amendment.
IN WITNESS WHEREOF, the Employer has executed this Amendment
No. 1 to The Atmos Energy Corporation Supplemental Executive
Benefits Plan this day of November, 1995 to be effective as
of this date.
ATMOS ENERGY CORPORATION
By: /s/ Robert F. Stephens
-----------------------------
Robert F. Stephens
President and Chief Operating
Officer
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EXHIBIT B
NONCOMPETITION AGREEMENT
THIS NONCOMPETITION AGREEMENT is entered into as of the ____
day of , 19 by and between ATMOS ENERGY CORPORATION,
a Texas corporation (the "Employer"), and ("Participant").
W I T N E S S E T H:
WHEREAS, the Employer has adopted the Atmos Energy
Corporation Supplemental Executive Benefits Plan (the "Plan"),
pursuant to which the corporate officers may receive supplemental
retirement, disability, and death benefits; and
WHEREAS, in accordance with the requirements of the Plan and
as an inducement to the Employer to allow Participant's
participation in the Plan, Participant has agreed to execute and
enter into this Agreement;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as
follows:
1. Participant agrees that, during the term of this
Agreement, Participant shall not (a) participate, directly or
indirectly, as an employee, agent, representative, officer,
director, stockholder, partner, joint venturer, or otherwise or
(b) have any direct or indirect financial interest in any form in
any business that sells or offers for sale, directly or
indirectly, any products or services that are competitive with
the products or services sold or offered for sale by the Employer
in any geographic location which the Employer shall be doing
business during such period of time as Participant is a
participant in the Plan; provided, however, that the ownership by
Participant of any stock listed on a national securities exchange
of any corporation conducting a competing business shall not be
deemed a violation of this Agreement if the aggregate amount of
such stock owned by Participant does not exceed one percent (1%)
of the total outstanding stock of such corporation.
2. In the event of a breach or threatened breach of the
provisions of this Agreement by Participant, the Employer shall
be entitled (as an absolute right and without the necessity of
proving irreparable injury or damages and in addition to any
other remedies available under the Plan or otherwise) to an
injunction restraining Participant from such violation.
3. If any provision of this Agreement shall, for any
reason, be adjudged by any court of competent jurisdiction to be
invalid or unenforceable, such judgment shall not affect, impair,
or invalidate the remainder of this Agreement but shall be
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confined in its operation to the provisions of this Agreement
directly involved in the controversy in which such judgment shall
have been rendered. To the extent that the provisions of this
Agreement are adjudged to be invalid or unenforceable, this
Agreement shall be construed and (in the absence of such
construction) reformed so as to allow the maximum benefit of the
provisions of this Agreement permitted by law. If, however, this
Agreement shall for any reason be held by a court of competent
jurisdiction to be excessively broad as to time, duration,
geographical scope, activity, or subject matter, it shall be
construed by limiting and reducing it so as to be enforceable to
the extent compatible with the applicable laws as they shall then
appear.
4. This Agreement shall become effective as of the
commencement of Supplemental Pension or Disability Pension
benefits from the Plan and shall terminate upon the earliest to
occur of (i) five (5) years from the date Participant begins
receiving Supplemental Pension or Disability Pension benefits
from the Plan, (ii) the attainment of age 67 by Participant, or
(iii) Participant's death.
5. This Agreement shall be construed and enforced in
accordance with the laws of the State of Texas.
IN WITNESS WHEREOF, the parties hereto have executed this
Noncompetition Agreement as of the date first written above.
PARTICIPANT: ATMOS ENERGY CORPORATION
By:
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EXHIBIT C-1
(FORM OF AGREEMENT FOR ALL PARTICIPANTS
OTHER THAN MR. VAUGHAN)
PARTICIPATION AGREEMENT
THIS PARTICIPATION AGREEMENT is entered into as of the
day of , 19 by and between ATMOS ENERGY CORPORATION,
a Texas corporation (the "Employer"), and ("Participant").
W I T N E S S E T H:
WHEREAS, the Employer has adopted the Atmos Energy
Corporation Supplemental Executive Benefits Plan (the "Plan"),
pursuant to which the corporate officers may receive supplemental
retirement, disability, and death benefits; and
WHEREAS, in accordance with Section 9.6 of the Plan, the
Employer and Participant have agreed to execute and enter into
this Agreement;
NOW, THEREFORE, in consideration of the premises and other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as
follows:
1. The Employer hereby agrees to provide to Participant the
benefits described in the Plan pursuant to the terms and
conditions set forth therein. Employer further agrees that, in
the event it amends or terminates the Plan in such a manner that
results in a decrease in the amount of the benefits to be paid
under the Plan to Participant or terminates Participant's
employment without Cause or Participant's participation in the
Plan for any reason other than Participant's resignation or
termination of Participant's employment for Cause, Participant
shall have the right to, and the Employer agrees to pay to
Participant, any benefits accrued prior to the effective date of
such amendment or termination of the Plan or of such termination
of Participant's employment with the Employer or participation in
the Plan, the amount of which benefit shall be calculated as
follows:
(a) In the event the Employer amends the Plan and such
amendment results in a decrease in the amount of the Supplemental
Pension, Disability Pension, or death benefit that would be paid
under the Plan but for the amendment thereof, the amount of
Participant's benefit shall be the sum of (i) Participant's
benefit as calculated pursuant to the terms of the Plan in effect
immediately prior to the amendment thereof and based upon
Participant's Compensation as of the date of his retirement,
disability, or death multiplied by a fraction, the numerator of
which shall be the number of years of vesting service by
Participant in the Pension Plan prior to the effective date of
the amendment (which number shall not be less than 5 nor greater
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than 20) and the denominator of which shall be the total number
of years of vesting service by Participant in the Pension Plan
(which number, for purposes of calculating Participant's
Supplemental Pension, shall not be greater than 20), plus (ii)
Participant's benefit as calculated pursuant to the terms of the
Plan as amended based upon Participant's Compensation as of the
date of his retirement, disability, or death multiplied by a
fraction, the numerator of which shall be the number of years
that Participant participated in the Pension Plan after the
effective date of the amendment (which number, for purposes of
calculating Participant's Supplemental Pension, when added to the
numerator of the fraction in clause (i) above, may not exceed 20)
and the denominator of which shall be the total number of years
of vesting service by Participant in the Pension Plan (which
number for purposes of calculating Participant's Supplemental
Pension, shall not be greater than 20); provided, however, that
if the Plan is so amended prior to Participant's fifth year of
vesting service in the Pension Plan, Participant's Supplemental
Pension payable hereunder shall be calculated solely in
accordance with the terms of the Plan as amended; provided
further that, in the event of any such amendment occurring upon
and after a "Change in Control" (as defined in Paragraph 2
hereof), Participant's Supplemental Pension must be at least
equal to that calculated pursuant to the provisions of Section
9.1 of the Plan for benefits payable in the event of a
termination of the Plan.
(b) In the event the Employer terminates the Plan or any
portion thereof and such termination affects the Disability
Pension or death benefit described in the Plan, Participant's
Disability Pension and death benefit shall be calculated as of
the date of termination of such benefit as though the date of
such termination was the date that Participant became disabled or
died. Such Disability Pension and death benefit shall become
payable, however, only upon Participant's disability or death
occurring in accordance with the terms of the Plan in effect
immediately prior to the date of its termination.
(c) In the event the Employer terminates the Plan or any
portion thereof and such termination affects the Supplemental
Pension described in the Plan, Participant's right to a
Supplemental Pension shall immediately vest regardless of whether
Participant has been a corporate officer of the Employer for at
least two years or has five years of vesting service under the
Pension Plan. In such event, Participant's Supplemental Pension
shall be the amount determined in accordance with Section 5.1 of
the Plan (i) except that it shall be based upon Participant's
Compensation as of the date of the termination of the Plan,
(ii) except that Participant shall be treated as having the
number of years of benefits service under the Pension Plan as he
would have if he remains in the Pension Plan until he reaches his
Earliest Commencement Age as set forth in the Minimum Benefit
Schedule attached to the Plan as Exhibit A or, if Participant is
not listed on the Minimum Benefit Schedule, age 62, and (iii)
except that, if Participant is not fully vested under the Pension
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Plan, the calculation made under paragraph (b) of Exhibit A-1 to
the Plan shall be made on the basis of the monthly amount of
pension that would be payable to Participant if he were so fully
vested.
(d) If, at any time prior to a "Change in Control" (as
defined in Paragraph 2 hereof), Participant's employment with the
Employer is terminated without Cause (as defined in this
Paragraph 1(d)) or if Participant's participation in the Plan is
terminated for any reason other than resignation or termination
of employment for Cause, Participant shall nevertheless be
entitled to the benefits payable under the Plan that have accrued
prior to the termination of Participant's employment or Plan
participation, the amount of such benefits to be calculated in
the manner set forth in Section 5.1 of the Plan; provided,
however, that Participant's right to a Supplemental Pension shall
vest only if Participant has been a corporate officer of the
Employer for at least two years and has at least five years of
vesting service under the Pension Plan as of the date of such
termination. The amount of the benefits payable under the Plan
to Participant in such event shall be calculated in the same
manner as set forth in Subparagraph 1(c) above for benefits
payable in the event of a termination of the Plan. As used in
this Paragraph 1, "Cause" for termination of employment shall
mean termination upon (i) the willful and continued failure by
Participant to substantially perform his duties with the Employer
(other than any such failure resulting from Participant's
incapacity due to physical or mental illness) after a written
demand for substantial performance is delivered to Participant by
the Employer that specifically identifies the manner in which the
Employer believes that Participant has not substantially
performed his duties or (ii) Participant's willful engagement in
conduct that is demonstrably and materially injurious to the
Employer, monetarily or otherwise. For purposes of this
paragraph, no act, or failure to act, on Participant's part shall
be deemed "willful" unless done, or omitted to be done, by
Participant not in good faith and without a reasonable belief
that the action or omission was in the best interests of the
Employer. Notwithstanding the foregoing, Participant shall not
be deemed to have been terminated for Cause unless and until
there shall have been delivered to Participant a copy of a
resolution duly adopted by the affirmative vote of not less than
three-quarters (3/4) of the entire membership of the Board of
Directors of the Employer at a meeting of such Board of Directors
called and held for such purpose (after reasonable notice to
Participant and an opportunity for Participant, together with
Participant's counsel, to be heard before the Board of
Directors), finding that in the good faith opinion of the Board
of Directors that Participant was guilty of conduct set forth
above in clauses (i) or (ii) of this Subparagraph 1(d) and
specifying the particulars thereof in detail.
2. Notwithstanding anything expressly or impliedly to the
contrary contained in this Agreement or the Plan, if, following a
Change in Control of the Employer, Participant's employment is
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terminated, or he is demoted or reassigned to a position that is
no longer a corporate officer position, for any reason other than
for Cause (as defined in Paragraph 1 of this Plan), Participant
shall nevertheless be entitled to receive a Supplemental Pension
at such time as he becomes entitled to receive a benefit under
the Pension Plan regardless of whether Participant has been a
corporate officer of the Employer for at least two years or has
five years of vesting service under the Pension Plan at the time
of such termination, demotion, or reassignment. Such
Supplemental Pension shall be calculated in the same manner as
set forth in Subparagraph 1(c) above for benefits payable in the
event of a termination of the Plan. As used in this Paragraph 2,
a "Change in Control" of the Employer shall be deemed to have
occurred if (i) any "person" (as such term is used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act")) other than a trustee or other
fiduciary holding securities under an employee benefit plan of
the Employer, is or becomes the "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Employer representing 33-1/3% or more of the
combined voting power of the Employer's then outstanding
securities; or (ii) during any period of two consecutive years
individuals who at the beginning of such period constitute the
Board of Directors and any new director (other than a director
designated by a person who has entered into an agreement with the
Employer to effect a transaction described in clauses (i) or (ii)
of this Paragraph) whose election by the Board or nomination for
election by the Employer's shareholders was approved by a vote of
at least two-thirds (2/3) of the directors then still in office
who either were directors at the beginning of the period or whose
election or nomination for election was previously so approved,
cease for any reason to constitute a majority thereof; or (iii)
the shareholders of the Employer approve a merger or
consolidation of the Employer with any other corporation, other
than a merger or consolidation which would result in the voting
securities of the Employer outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by
being converted into voting securities of the surviving entity)
at least 60% of the combined voting power of the voting
securities of the Employer or such surviving entity outstanding
immediately after such merger or consolidation, or the
shareholders of the Employer approve a plan of complete
liquidation of the Employer or an agreement for the sale or
disposition by the Employer of all or substantially all the
Employer's assets.
3. Except as otherwise provided in Paragraph 2 of this
Agreement, Participant agrees that nothing in this Agreement or
the Plan shall entitle him, or be deemed to entitle him, to
receive a Supplemental Pension under the Plan if (i) he has not
met the requirements for a Supplemental Pension as set forth in
the Plan, (ii) his employment with the Employer is terminated
prior to his reaching the age of eligibility for the immediate
commencement of his Pension Plan benefit due to resignation, or
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(iii) his employment with the Employer is terminated for Cause
(as defined in Paragraph 1 above).
4. No amendment or termination of the Plan by the Employer
shall constitute an amendment or termination of this Agreement.
This Agreement may be amended or modified only by the written
agreement of the parties hereto, and will terminate only upon the
occurrence of the earlier of the following events: (i) the
execution of a written agreement to terminate this Agreement
signed by all of the parties hereto, (ii) the satisfaction of
all of the Employer's obligations to Participant under the Plan
and this Agreement, (iii) the termination by Participant of
Participant's employment with the Employer by resignation
effective prior to Participant reaching age 55 unless such
resignation occurs after a Change in Control, (iv) the
termination for Cause of Participant's employment with the
Employer, or (v) the breach by Participant of any of the terms or
provisions of the Noncompetition Agreement executed by
Participant in accordance with the Plan.
5. Nothing contained in this Agreement shall be construed
as a contract of employment between the Employer and Participant,
or as a right of Participant to be continued in the employment of
the Employer, or as a limitation of the right of the Employer to
discharge Participant with or without cause.
6. The Employer agrees to pay any and all legal fees and
expenses incurred by Participant in seeking to obtain or enforce
any right or benefit provided by this Agreement.
7. Each capitalized term used in this Agreement that is not
otherwise defined herein shall have the same meaning attributed
to it in the Plan.
8. Any successor to the Employer hereunder, which successor
continues or acquires any of the business of the Employer, shall
be bound by the terms of this Agreement in the same manner and to
the same extent as the Employer.
9. This Agreement shall be construed and enforced in
accordance with the laws of the State of Texas.
IN WITNESS WHEREOF, the parties hereto have executed this
Participation Agreement as of the date first written above.
PARTICIPANT: ATMOS ENERGY CORPORATION
By:
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