EXHIBIT 4
SECOND AMENDMENT TO RIGHTS AGREEMENT
This Second Amendment to Rights Agreement (this "Second
Amendment") is entered into by and among Atmos Energy Corporation, a Texas and
Virginia corporation (the "Company"), and EquiServe Trust Company, N.A., a
national association with its principal place of business in Massachusetts and
the successor to the stock transfer business of Fleet National Bank (formerly
known as BankBoston, N.A) (the "Rights Agent"), on this 13th day of February
2002, at the direction of the Company.
WHEREAS, the Company and the Rights Agent have entered into
that certain Rights Agreement, dated November 12, 1997 (the "Rights Agreement");
and
WHEREAS, the Company and the Rights Agent have entered into
that that certain First Amendment, dated as of August 11, 1999, to the Rights
Agreement; and
WHEREAS, on February 12, 2002, the Board of Directors of the
Company determined to amend the Rights Agreement and directed the Rights Agent
to enter into this Second Amendment.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements herein set forth, the parties hereto do hereby agree as
follows:
1. The Rights Agreement is hereby amended as follows:
(a) All references in the Rights Agreement to
BankBoston, N.A. shall hereafter be deemed to be references to its
successor with respect to this Rights Agreement, EquiServe Trust
Company, N.A.
(b) The recital of the Rights Agreement is hereby
amended to read in its entirety as follows:
"WHEREAS, on November 12, 1997 (the "Rights
Dividend Declaration Date"), the Board of Directors of the
Company authorized and declared a dividend distribution of one
Right (as hereinafter defined) for each share of common stock,
no par value, of the Company (the "Common Stock") outstanding
at the close of business on May 10, 1998 (the "Record Date"),
and has authorized the issuance of one Right (as such number
may hereinafter be adjusted pursuant to the provisions of
Section 11(p) hereof)
for each share of Common Stock of the Company issued between
the Record Date (whether originally issued or delivered from
the Company's treasury) and the Distribution Date (as
hereinafter defined), each Right initially representing the
right to purchase one share of Common Stock, upon the terms
and subject to the conditions hereinafter set forth (the
"Rights");
WHEREAS, on August 11, 1999 the Company and
the Rights Agent entered into that certain First Amendment to
this Agreement; and
WHEREAS, the Board of Directors of the
Company has authorized the Company to enter into that certain
Second Amendment to the Rights Agreement, which amendment
shall provide that each Right shall hereafter represent the
right to purchase one-tenth of one share of Common Stock, upon
the terms and subject to the conditions hereinafter set forth,
and such other amendments as are provided for in that certain
Second Amendment."
(c) Section 1(b.1) of the Rights Agreement is hereby
amended to read in its entirety as follows:
"(b.1) "Adjusted Exercise Price" shall have the
meaning set forth in Section 11(a)(ii) hereof."
(d) The second sentence of Section 4(a) of the Rights
Agreement is hereby amended to read in its entirety as follows:
"Subject to the provisions of Section 11 and
Section 22 hereof, the Rights Certificates, whenever
distributed, shall be dated as of the Record Date and on their
face shall entitle the holders thereof to purchase such number
of one-tenths of a share of Common Stock as shall be set forth
therein at the price set forth therein (such exercise price
per one-tenth of a share, the "Purchase Price"), but the
amount and type of securities purchasable upon the exercise of
each Right and the Purchase Price thereof shall be subject to
adjustment as provided herein."
(e) Section 7(a) of the Rights Agreement is hereby
amended to read in its entirety as follows:
"(a) Subject to Section 7(e) hereof, at any time
after the Distribution Date, the registered holder of any
Rights Certificate may
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exercise the Rights evidenced thereby (except as otherwise
provided herein including, without limitation, the
restrictions on exercisability set forth in Section 9(c),
Section 11(a)(iii) and Section 23(a) hereof) in whole or in
part upon surrender of the Rights Certificate, with the form
of election to purchase and the certificate on the reverse
side thereof duly executed, to the Rights Agent at the
principal office or offices of the Rights Agent designated for
such purpose, together with payment of the aggregate Purchase
Price with respect to the total number of one-tenths of a
share of Common Stock (or other securities, cash or other
assets, as the case may be) as to which such surrendered
Rights are then exercisable, at or prior to the earlier of (i)
5:00 P.M., Boston, Massachusetts time, on May 10, 2008 or such
later date as may be established by the Board of Directors
prior to the expiration of the Rights (such date, as it may be
extended by the Board, the "Final Expiration Date"), or (ii)
the time at which the Rights are redeemed as provided in
Section 23 hereof (the earlier of (i) and (ii) being herein
referred to as the "Expiration Date")."
(f) Section 7(b) of the Rights Agreement is hereby
amended to read in its entirety as follows:
"(b) The Purchase Price for each one-tenth of a
share of Common Stock pursuant to the exercise of a Right
shall initially be $8.00 (or the equivalent of $80 per share
of Common Stock), and shall be subject to adjustment from time
to time as provided in Section 11 and Section 13(a) hereof and
shall be payable in accordance with paragraph (c) below."
(g) The first two sentences of Section 7(c) of the
Rights Agreement are hereby amended to read in their entirety as
follows:
"(c) Upon receipt of a Rights Certificate
representing exercisable Rights, with the form of election to
purchase and the certificate duly executed, accompanied by
payment, with respect to each Right so exercised, of the
Purchase Price (or, after the occurrence of a Section
11(a)(ii) Event or a Section 13 Event, the Adjusted Exercise
Price) for the number of one-tenths of a share of Common Stock
(or other shares, securities, cash or other assets, as the
case may be) to be purchased as set forth below and an amount
equal to any applicable transfer tax, the Rights Agent shall,
subject to Section 20(k) hereof, thereupon promptly (i) (A)
requisition from any transfer agent of the shares of Common
Stock (or make available, if the Rights Agent is the transfer
agent for such shares) certificates for the total number of
shares of Common Stock to be purchased and the Company hereby
irrevocably authorizes its transfer agent to comply with all
such requests, or (B) if the Company shall have
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elected to deposit the total number of shares of Common Stock
issuable upon exercise of the Rights hereunder with a
depositary agent, requisition from the depositary agent
depositary receipts representing such number of shares of
Common Stock as are to be purchased (in which case
certificates for the shares of Common Stock represented by
such receipts shall be deposited by the transfer agent with
the depositary agent) and the Company will direct the
depositary agent to comply with such request, (ii) requisition
from the Company the amount of cash, if any, to be paid in
lieu of fractional shares in accordance with Section 14
hereof, (iii) after receipt of such certificates or depositary
receipts, cause the same to be delivered to or upon the order
of the registered holder of such Rights Certificate,
registered in such name or names as may be designated by such
holder, and (iv) after receipt thereof, deliver such cash, if
any, to or upon the order of the registered holder of such
Rights Certificate. The payment of the Purchase Price or the
Adjusted Exercise Price (as such amounts may be reduced
pursuant to Section 11(a)(iii) hereof) shall be made in cash
or by certified bank check or bank draft payable to the order
of the Company. "
(h) Section 9(a) of the Rights Agreement is hereby
amended to read in its entirety as follows:
"(a) The Company covenants and agrees that it
will cause to be reserved and kept available out of its
authorized and unissued shares of Common Stock and/or other
securities or out of its authorized and issued shares held in
its treasury, the number of shares of Common Stock and/or
other securities that, as provided in this Agreement, will be
sufficient to permit the exercise in full of all outstanding
Rights after the Distribution Date but prior to a Section
11(a)(ii) Event."
(i) Section 9(d) of the Rights Agreement is hereby
amended to read in its entirety as follows:
"(d) The Company covenants and agrees that
it will take all such action as may be necessary to ensure
that all shares of Common Stock and/or other securities
delivered upon exercise of Rights shall, at the time of
delivery of the certificates for such shares (subject to
payment of the Purchase Price for each one-tenth of a share of
Common Stock to be purchased or, after a Section 11(a)(ii)
Event, the Adjusted Exercise Price), be duly and validly
authorized and issued and fully paid and nonassessable."
(j) The first sentence of Section 10 of the Rights
Agreement is hereby amended to read in its entirety as follows:
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"Each person in whose name any certificate for
shares of Common Stock and/or other securities, as the case
may be, is issued upon the exercise of Rights shall for all
purposes be deemed to have become the holder of record of such
shares of Common Stock and/or other securities, as the case
may be, represented thereby on, and such certificate shall be
dated, the date upon which the Rights Certificate evidencing
such Rights was duly surrendered and payment of the Purchase
Price or, if applicable, the Adjusted Exercise Price (and all
applicable transfer taxes) was made; provided, however, that
if the date of such surrender and payment is a date upon which
the Common Stock (or other securities, as the case may be)
transfer books of the Company are closed, such Person shall be
deemed to have become the record holder of such shares
(fractional or otherwise) on, and such certificate shall be
dated, the next succeeding Business Day on which the Common
Stock (or other securities, as the case may be) transfer books
of the Company are open."
(k) The first sentence of Section 11(a)(i) of the
Rights Agreement is hereby amended to read in its entirety as follows:
"(a)(i) In the event the Company shall at any
time after the date of this Agreement (A) declare a dividend
on the Common Stock payable in shares of Common Stock, (B)
subdivide the outstanding Common Stock, (C) combine the
outstanding Common Stock into a smaller number of shares, or
(D) issue any shares of its capital stock in a
reclassification of the Common Stock (including any such
reclassification in connection with a consolidation or merger
in which the Company is the continuing or surviving
corporation), except as otherwise provided in this Section
11(a) and Section 7(e) hereof, the Purchase Price in effect at
the time of the record date for such dividend or of the
effective date of such subdivision, combination or
reclassification, and the number and kind of shares of Common
Stock or capital stock, as the case may be, issuable on such
date, shall be proportionately adjusted so that the holder of
any Right exercised after such time shall be entitled to
receive, upon payment of the Purchase Price or, if applicable,
the Adjusted Exercise Price, then in effect, the aggregate
number and kind of shares of Common Stock, or capital stock,
as the case may be, which, if such Right had been exercised
immediately prior to such date and at a time when the Common
Stock transfer books of the Company were open, such holder
would have owned upon such exercise and been entitled to
receive by virtue of such dividend, subdivision, combination
or reclassification; provided, however, that if the record
date for any such dividend, subdivision, combination or
reclassification shall occur prior to the Distribution Date,
the Company shall make an appropriate adjustment to the
Purchase Price (taking into
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account any additional Rights which may be issued as a result
of such dividend, subdivision, combination or
reclassification), in lieu of adjusting (as described above)
the number of shares of Common Stock (or other capital shares,
as the case may be) issuable upon exercise of the Rights."
(l) Section 11(a)(ii) of the Rights Agreement is
hereby amended to read in its entirety as follows:
"(ii) In the event (A) any Person (other than the
Company, any Subsidiary of the Company, any employee benefit
plan of the Company or of any Subsidiary of the Company, or
any Person or entity organized, appointed or established by
the Company for or pursuant to the terms of any such plan),
alone or together with its Affiliates and Associates, shall,
at any time after the Rights Dividend Declaration Date, become
an Acquiring Person, unless the event causing the 15%
threshold to be crossed is a transaction set forth in Section
13(a) hereof, or is an acquisition of shares of Common Stock
pursuant to a tender offer or an exchange offer for all
outstanding shares of Common Stock at a price and on terms
determined by at least a majority of the members of the Board
of Directors who are not officers of the Company and who are
not representatives, nominees, Affiliates or Associates of an
Acquiring Person, after receiving advice from one or more
investment banking firms, to be (i) at a price which is fair
to shareholders (taking into account all factors which such
members of the Board deem relevant, including, without
limitation, prices which could reasonably be achieved if the
Company or its assets were sold on an orderly basis designed
to realize maximum value) and (ii) otherwise in the best
interests of the Company and its shareholders (a "Qualified
Offer"), or (B) the Board of Directors of the Company shall
declare any Person to be an Adverse Person, upon a
determination that such Person, alone or together with its
Affiliates and Associates, has, at any time after the Rights
Dividend Declaration Date, become the Beneficial Owner of an
amount of Common Stock which the Board of Directors determines
to be substantial (which amount shall in no event be less than
10% of the shares of Common Stock then outstanding) and a
determination by at least a majority of the Board of Directors
who are not officers of the Company, after reasonable inquiry
and investigation, including consultation with such persons as
such directors shall deem appropriate, that (i) such
Beneficial Ownership by such Persons is intended to cause the
Company to repurchase the Common Stock beneficially owned by
such Person or to cause pressure on the Company to take action
or enter into a transaction or series of transactions intended
to provide such Person with short-term financial gain under
circumstances where the Board of Directors determines that the
best long-term interests of the Company and its
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shareholders would not be served by taking such action or
entering into such transactions or series of transactions at
that time or (ii) such Beneficial Ownership is causing or
reasonably likely to cause a material adverse impact
(including, but not limited to, causing, or being reasonably
likely to cause, the Company to become a subsidiary of a
registered holding company under the Public Utility Holding
Company Act of 1935, as amended) on the business or prospects
of the Company, then, promptly following the occurrence of
such event, proper provision shall be made so that each holder
of a Right (except as provided below and in Section 7(e)
hereof) shall thereafter have the right to receive, upon
exercise thereof by payment (in lieu of the payment required
to be made pursuant to Section 7 to exercise a Right) of an
amount equal to the product of (x) the number of one-tenths of
a share of Common Stock that would otherwise be issuable upon
exercise of a Right after the Distribution Date if no Section
11(a)(ii) Event or Section 13 Event had occurred and (y) ten
times the then current Purchase Price for one-tenth of a share
of Common Stock that would have been payable in accordance
with the terms of this Agreement if such Right had been
exercised immediately prior to the first occurrence of a
Section 11(a)(ii) Event or Section 13 Event, such number of
whole shares of Common Stock of the Company (in lieu of the
number of one-tenths of a share of Common Stock for which such
Right would have been exercisable after the Distribution Date
and prior to the first occurrence of a Section 11(a)(ii) Event
or Section 13 Event) as shall equal the result obtained by (x)
multiplying the then-current Purchase Price for one-tenth of a
share of Common Stock immediately prior to the first
occurrence of a Section 11(a)(ii) Event or Section 13 Event by
ten times the number of one-tenths of a share of Common Stock
for which a Right would have been exercisable after the
Distribution Date and immediately prior to the first
occurrence of a Section 11(a)(ii) Event or Section 13 Event
and (y) dividing that product by 50% of the Current Market
Price (determined pursuant to Section 11(d) hereof) per share
of Common Stock on the date of such first occurrence (such
number of shares, the "Adjustment Shares"). The exercise price
of a Right determined pursuant to the immediately preceding
sentence at the time of the exercise of the Right, after
giving effect to any adjustments in the Purchase Price
pursuant to this Section 11 but subject to Section 11(a)(iii),
is referred to in this Agreement as the "Adjusted Exercise
Price.""
(m) The first two sentences of Section 11(a)(iii) of
the Rights Agreement are hereby amended to read in their entirety as
follows:
"(iii) In the event that the number of shares of
Common Stock which are authorized by the Company's Articles of
Incorporation,
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but which are not outstanding or reserved for issuance for
purposes other than upon exercise of the Rights, are not
sufficient to permit the exercise in full of the Rights in
accordance with the foregoing subparagraph (ii) of this
Section 11(a), the Company shall: (A) determine the value of
the Adjustment Shares issuable upon the exercise of a Right
(the "Current Value"), and (B) with respect to each Right
(subject to Section 7(e) hereof), make adequate provision to
substitute for the Adjustment Shares, upon the exercise of a
Right and payment of the Adjusted Exercise Price, (1) cash,
(2) a reduction in the Adjusted Exercise Price, (3) Common
Stock or other equity securities of the Company (including,
without limitation, shares, or units of shares, of preferred
stock which the Board has deemed to have essentially the same
value or economic rights as shares of Common Stock (such
shares of preferred stock being referred to as "Common Stock
Equivalents")), (4) debt securities of the Company, (5) other
assets, or (6) any combination of the foregoing, having an
aggregate value equal to the Current Value (less the amount of
any reduction in the Adjusted Exercise Price), where such
aggregate value has been determined by the Board based upon
the advice of a nationally recognized investment banking firm
selected by the Board; provided, however, that if the Company
shall not have made adequate provision to deliver value
pursuant to clause (B) above within thirty (30) days following
the later of (x) the first occurrence of a Section 11(a)(ii)
Event and (y) the date on which the Company's right of
redemption pursuant to Section 23(a) expires (the later of (x)
and (y) being referred to herein as the "Section 11(a)(ii)
Trigger Date"), then the Company shall be obligated to
deliver, upon the surrender for exercise of a Right and
without requiring payment of the Adjusted Exercise Price,
shares of Common Stock (to the extent available) and then, if
necessary, cash, which shares and/or cash have an aggregate
value equal to the Spread. For purposes of the preceding
sentence, the term "Spread" shall mean the excess of (i) the
Current Value over (ii) the Adjusted Exercise Price."
(n) Section 11(f) of the Rights Agreement is hereby
amended to read in its entirety as follows:
"(f) If as a result of an adjustment made
pursuant to Section 11(a)(ii) or Section 13(a) hereof, the
holder of any Right thereafter exercised shall become entitled
to receive any shares of capital stock other than Common
Stock, thereafter the number of such other shares so
receivable upon exercise of any Right and the Purchase Price
thereof shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the
provisions with respect to the Common Stock contained in
Sections 11(a), (b), (c), (e), (g), (h), (i), (j), (k) and
(m), and the provisions of Sections 7, 9, 10, 13 and 14 hereof
with
8
respect to the Common Stock shall apply on like terms to any
such other shares; provided, however, that the Company shall
not be liable for its inability to reserve and keep available
for issuance upon exercise of the Rights pursuant to Section
11(a)(ii) a number of shares of Common Stock greater than the
number then authorized by the Company's Articles of
Incorporation but not outstanding or reserved for other
purposes."
(o) Section 11(h) of the Rights Agreement is hereby
amended to read in its entirety as follows:
"(h) Unless the Company shall have exercised its
election as provided in Section 11(i), upon each adjustment of
the Purchase Price as a result of the calculations made in
Sections 11(b) and (c), each Right outstanding immediately
prior to the making of such adjustment shall thereafter
evidence the right to purchase, at the adjusted Purchase
Price, that number of one-tenths of a share of Common Stock
(calculated to the nearest one ten-thousandth) obtained by (i)
multiplying (x) the number of one-tenths of a share covered by
a Right immediately prior to this adjustment, by (y) the
Purchase Price in effect immediately prior to such adjustment
of the Purchase Price, and (ii) dividing the product so
obtained by the Purchase Price in effect immediately after
such adjustment of the Purchase Price."
(p) The first two sentences of Section 11(i) of the
Rights Agreement are hereby amended to read in their entirety as
follows:
"(i) The Company may elect on or after the date
of any adjustment of the Purchase Price to adjust the number
of Rights, in lieu of any adjustment in the number of
one-tenths of a share of Common Stock purchasable upon the
exercise of a Right. Each of the Rights outstanding after the
adjustment in the number of Rights shall be exercisable for
the number of one-tenths of a share of Common Stock for which
a Right was exercisable immediately prior to such adjustment."
(q) Section 11(j) of the Rights Agreement is hereby
amended to read in its entirety as follows:
"(j) Irrespective of any adjustment or change in
the Purchase Price or the number of one-tenths of a share of
Common Stock issuable upon the exercise of the Rights, the
Rights Certificates theretofore and thereafter issued may
continue to express the Purchase Price per one-tenth of a
share and the number of one-tenths of a share which were
expressed in the initial Rights Certificates issued
hereunder."
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(r) Section 11(k) of the Rights Agreement is hereby
amended to read in its entirety as follows:
"(k) Before taking any action that would cause an
adjustment reducing the Purchase Price below the then stated
value, if any, of the number of one-tenths of a share of
Common Stock issuable upon exercise of the Rights, the Company
shall take any corporate action which may, in the opinion of
its counsel, be necessary in order that the Company may
validly and legally issue fully paid and nonassessable such
number of one-tenths of a share of Common Stock at such
adjusted Purchase Price."
(s) Section 13(a) of the Rights Agreement is hereby
amended to read in its entirety as follows:
"(a) In the event that, following the Stock
Acquisition Date, directly or indirectly, (x) the Company
shall consolidate with, or merge with and into, any other
Person (other than a Subsidiary of the Company in a
transaction which complies with Section 11(o) here-of), and
the Company shall not be the continuing or surviving
corporation of such consolidation or merger, (y) any Person
(other than a Subsidiary of the Company in a transaction which
complies with Section 11(o) hereof) shall consolidate with, or
merge with or into, the Company, and the Company shall be the
continuing or surviving corporation of such consolidation or
merger and, in connection with such consolidation or merger,
all or part of the outstanding shares of Common Stock shall be
changed into or exchanged for stock or other securities of any
other Person or cash or any other property, or (z) the Company
shall sell or otherwise transfer (or one or more of its
Subsidiaries shall sell or otherwise transfer), in one
transaction or a series of related transactions, assets, cash
flow or earning power aggregating more than 50% of the assets,
cash flow or earning power of the Company and its Subsidiaries
(taken as a whole) to any Person or Persons (other than the
Company or any Subsidiary of the Company in one or more
transactions each of which complies with Section 11(o)
hereof), then, and in each such case (except as may be
contemplated by Section 13(d) hereof), proper provision shall
be made so that: (i) each holder of a Right, except as
provided in Section 7(e) hereof, shall thereafter have the
right to receive, upon the exercise thereof at the then
current Adjusted Exercise Price in accordance with the terms
of this Agreement, such number of validly authorized and
issued, fully paid, non-assessable and freely tradeable shares
of Common Stock of the Principal Party (as such term is
hereinafter defined), not subject to any liens, encumbrances,
rights of first refusal or other adverse claims, as shall be
equal to the result
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obtained by (1) multiplying the then current Adjusted Exercise
Price by the number of one-tenths of a share of Common Stock
for which a Right is exercisable immediately prior to the
first occurrence of a Section 13 Event (or, if a Section
11(a)(ii) Event has occurred prior to the first occurrence of
a Section 13 Event, multiplying the number of such one-tenths
of a share for which a Right was exercisable immediately prior
to the first occurrence of a Section 11(a)(ii) Event by the
Adjusted Exercise Price), and dividing that product by (2) 50%
of the Current Market Price (determined pursuant to Section
11(d) hereof) per share of the Common Stock of such Principal
Party on the date of consummation of such Section 13 Event;
(ii) such Principal Party shall thereafter be liable for, and
shall assume, by virtue of such Section 13 Event, all the
obligations and duties of the Company pursuant to this
Agreement; (iii) the term "Company" shall thereafter be deemed
to refer to such Principal Party, it being specifically
intended that the provisions of Section 11 hereof shall apply
only to such Principal Party following the first occurrence of
a Section 13 Event; (iv) such Principal Party shall take such
steps (including, but not limited to, the reservation of a
sufficient number of shares of its Common Stock) in connection
with the consummation of any such transaction as may be
necessary to assure that the provisions hereof shall
thereafter be applicable, as nearly as reasonably may be, in
relation to its shares of Common Stock thereafter deliverable
upon the exercise of the Rights; and (v) the provisions of
Section 11(a)(ii) hereof (except the provisions setting forth
the procedure for determining the Adjusted Exercise Price)
shall be of no effect following the first occurrence of any
Section 13 Event."
(t) The first sentence of Section 22 of the Rights
Agreement is hereby amended to read in its entirety as follows:
"Notwithstanding any of the provisions of this
Agreement or of the Rights to the contrary, the Company may,
at its option, issue new Rights Certificates evidencing Rights
in such form as may be approved by the Board to reflect any
adjustment or change in the Purchase Price or the Adjusted
Exercise Price and the number or kind or class of shares or
other securities or property purchasable under the Rights
Certificates made in accordance with the provisions of this
Agreement."
(u) The address of the Rights Agent in Section 25 of
the Rights Agreement is hereby amended to read in its entirety as
follows:
EquiServe Trust Company, N.A.
150 Royall Street
Canton, MA 02021
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(v) Exhibit A to the Rights Agreement, the Form of
Rights Certificate, is hereby amended as follows:
i. The second paragraph of Exhibit A (Form of Rights
Certificate) is hereby amended to read in its
entirety as follows:
" This certifies that _____________________, or
registered assigns, is the registered owner of the
number of Rights set forth above, each of which
entitles the owner thereof, subject to the terms,
provisions and conditions of the Rights Agreement,
dated as of November 12, 1997, as amended (the
"Rights Agreement"), between Atmos Energy
Corporation, a Texas and Virginia corporation (the
"Company"), and EquiServe Trust Company, N.A., a
national association with its principal place of
business in Massachusetts (the "Rights Agent"), to
purchase from the Company at any time prior to 5:00
P.M. (Boston, Massachusetts time) on May 10, 2008
(unless such date is extended prior thereto by the
Board of Directors) at the office or offices of the
Rights Agent designated for such purpose, or its
successors as Rights Agent, one-tenth of one fully
paid, non-assessable share of Common Stock of the
Company, no par value, at a purchase price of $8.00
per one-tenth of one share (the "Purchase Price"),
upon presentation and surrender of this Rights
Certificate with the Form of Election to Purchase and
related Certificate duly executed. All capitalized
terms which are not defined herein shall have the
meanings ascribed to them in the Rights Agreement.
The number of Rights evidenced by this Rights
Certificate (and the number of one-tenths of a share
of Common Stock which may be purchased upon exercise
thereof) set forth above, and the Purchase Price per
share set forth above, are the number and Purchase
Price as of February 13, 2002, based on the Common
Stock as constituted at such date. The Company
reserves the right to require prior to the occurrence
of a Triggering Event that a number of Rights be
exercised so that only whole shares of Common Stock
will be issued."
ii. The first sentence of the sixth paragraph of
Exhibit A (Form of Rights Certificate) is
hereby amended to read in its entirety as
follows:
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" This Rights Certificate, with or without other
Rights Certificates, upon surrender at the principal
office or offices of the Rights Agent designated for
such purpose, may be exchanged for another Rights
Certificate or Rights Certificates of like tenor and
date evidencing Rights entitling the holder to
purchase a like aggregate number of one-tenths of a
share of Common Stock as the Rights evidenced by the
Rights Certificate or Rights Certificates surrendered
shall have entitled such holder to purchase."
iii. The eighth paragraph of Exhibit A (Form of
Rights Certificate) is hereby amended to read in
its entirety as follows:
"No fractional shares of Common Stock will be
issued upon the exercise of any Right or Rights
evidenced hereby, if in lieu thereof a cash payment
is made, as provided in the Rights Agreement."
(w) Exhibit A to the Rights Agreement, the Form of
Election to Purchase, is hereby amended as follows:
i. The first paragraph of Exhibit A (Form of
Election to Purchase) is hereby amended to read
in its entirety as follows:
"The undersigned hereby irrevocably elects to
exercise _______________ Rights represented by this
Rights Certificate to purchase the number of
one-tenths of a share of Common Stock issuable upon
the exercise of the Rights (or such other securities
of the Company or of any other person which may be
issuable upon the exercise of the Rights) and
requests that certificates for such shares be issued
in the name of and delivered to:"
(x) Exhibit B to the Rights Agreement, the Summary of
Rights to Purchase Common Stock, is hereby amended as follows:
i. The second sentence of the first paragraph of
Exhibit B is hereby amended to read in its
entirety as follows:
"Each Right entitles the registered holder to
purchase from the Company one-tenth of a share of
Common Stock at a Purchase Price of $8.00 per share,
subject to adjustment."
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ii. The first sentence of the sixth paragraph of
Exhibit B is hereby amended to read in its
entirety as follows:
"In the event that the Board of Directors
determines that a person is an Adverse Person or a
person becomes an Acquiring Person (except pursuant
to an offer for all outstanding shares of Common
Stock which the independent directors, who are not
associated with an Acquiring Person, determine to be
fair to shareholders and otherwise in the best
interests of the Company and its shareholders (a
"Qualified Offer")), each holder of a Right will
thereafter have the right to receive, upon exercise
of the Right at an exercise price equal to ten times
the Purchase Price multiplied by the number of
one-tenths of a share of Common Stock subject to the
Right immediately before such time (the "Adjusted
Exercise Price"), that number of shares of Common
Stock (or, in certain circumstances, cash, property
or other securities of the Company) having a value
equal to two times the Adjusted Exercise Price of the
Right."
iii. The first sentence of the seventh paragraph of
Exhibit B is hereby amended to read in its
entirety as follows:
"For example, at a Purchase Price of $8.00 per
Right, each Right not owned by an Acquiring Person or
Adverse Person (or by certain related parties)
following an event set forth in the preceding
paragraph would entitle its holder to purchase $160
worth of Common Stock (or other consideration, as
noted above) for $80."
iv. The first sentence of the eighth paragraph of
Exhibit B is hereby amended to read in its
entirety as follows:
"In the event that, at any time following the
Stock Acquisition Date, (i) the Company engages in a
merger or other business combination transaction in
which the Company is not the surviving corporation,
(ii) the Company engages in a merger or other
business combination transaction in which the Company
is the surviving corporation and the Common Stock of
the Company is changed or exchanged or (iii) 50% or
more of the Company's assets, cash flow or earning
power is sold or transferred, each holder of a Right
(except Rights which previously have been voided as
set forth above) shall thereafter have the right to
receive, upon exercise of the Right at the Adjusted
Exercise Price, common stock
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of the acquiring company having a value equal to two
times the Adjusted Exercise Price of the Right."
v. The ninth paragraph of Exhibit B is hereby
amended to read in its entirety as follows:
"The Purchase Price or Adjusted Exercise Price
payable, and the number of shares of Common Stock or
other securities or property issuable, upon exercise
of the Rights are subject to adjustment from time to
time to prevent dilution (i) in the event of a stock
dividend on, or a subdivision, combination or
reclassification of, the Common Stock, (ii) if
holders of the Common Stock are granted certain
rights or warrants to subscribe for Common Stock or
convertible securities at less than the current
market price of the Common Stock or (iii) upon the
distribution to holders of the Common Stock of
evidences of indebtedness or assets (excluding
regular quarterly cash dividends) or of subscription
rights or warrants (other than those referred to
above)."
vi. The second sentence of the tenth paragraph of
Exhibit B is hereby amended to read in its
entirety as follows:
"No fractional shares are required to be issued
and, in lieu thereof, an adjustment in cash may be
made based on the market price of the Common Stock on
the last trading date prior to the date of exercise."
2. Except as amended by this Second Amendment, the Rights Agreement
shall continue in full force and effect as originally executed and delivered.
3. Any reference in the Rights Agreement to the "Agreement" shall refer
to the Rights Agreement as amended by this Second Amendment.
4. All capitalized terms used herein and not otherwise defined shall
have the meanings assigned to those terms in the Rights Agreement.
5. This Second Amendment shall be governed and construed in accordance
with the laws of the State of Texas.
6. This Second Amendment may be executed in any number of counterparts
and each of such counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together constitute by one and the
same instrument.
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IN WITNESS WHEREOF, the parties have executed this Second
Amendment as of the date written above.
Attest: ATMOS ENERGY CORPORATION
By: /s/ SHIRLEY A. HINES By: /s/ LOUIS P. GREGORY
-------------------------------- --------------------------------
Name: Shirley A. Hines Name: Louis P. Gregory
Title: Corporate Secretary Title: Senior Vice President
and General Counsel
Attest: EQUISERVE TRUST COMPANY, N.A.
By: /s/ ERIKA ILLINGWORTH By: /s/ JOSHUA P. MCGINN
-------------------------------- --------------------------------
Name: Erika Illingworth Name: Joshua P. McGinn
Title: Account Manager Title: Senior Account Manager
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