As filed with the Securities and Exchange Commission on December 20, 2001
REGISTRATION NO. 333-_____________
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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ATMOS ENERGY CORPORATION
(Exact name of registrant as specified in its charter)
TEXAS AND VIRGINIA 75-1743247
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
LOUIS P. GREGORY
1800 THREE LINCOLN CENTRE 1800 THREE LINCOLN CENTRE
5430 LBJ FREEWAY 5430 LBJ FREEWAY
DALLAS, TEXAS 75240 DALLAS, TEXAS 75240
(972) 934-9227 (972) 934-9227
(Address, including zip code, and (Name, address, including zip code,
telephone number, including area code, and telephone number, including
of registrant's principal executive offices) area code, of agent of service)
The Commission is requested to mail copies of all orders, notices and
communications to:
IRWIN F. SENTILLES, III JONATHAN JEWETT
GIBSON, DUNN & CRUTCHER LLP SHEARMAN & STERLING
2100 MCKINNEY AVENUE, SUITE 1100 599 LEXINGTON AVENUE
DALLAS, TEXAS 75201 NEW YORK, NEW YORK 10022
(214) 698-3100
Approximate date of commencement of proposed sale to public:
FROM TIME TO TIME AFTER THIS
REGISTRATION STATEMENT BECOMES EFFECTIVE.
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If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [x]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
------------------------------------------------ ---------------------------------- ----------------------------------
Title of each class of Proposed maximum Amount of
securities to be registered aggregate offering price(1) registration fee
------------------------------------------------ ---------------------------------- ----------------------------------
Debt Securities and Common Stock (no par value
per share)(2) $600,000,000 $143,400
------------------------------------------------ ---------------------------------- ----------------------------------
(1) Exclusive of accrued interest and dividends, if any, and estimated
solely for the purpose of calculating the registration fee pursuant to Rule
457(o) under the Securities Act.
(2) 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 EquiServe Trust Company, N.A., as Rights
Agent, and until a triggering event thereunder, the Rights trade with, and
cannot be separated from, the Common Stock.
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The registrant hereby amends this registration statement on such date
or dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this registration statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
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The information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an offer
to sell these securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not permitted.
Subject to Completion, Dated December 20, 2001
PROSPECTUS
ATMOS ENERGY CORPORATION
BY THIS PROSPECTUS, WE OFFER UP TO
$600,000,000
OF DEBT SECURITIES AND COMMON STOCK
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We will provide specific terms of these securities in supplements to
this prospectus. This prospectus may not be used to sell securities unless
accompanied by a prospectus supplement. You should read this prospectus and the
prospectus supplement carefully before you invest.
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Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this
prospectus is truthful or complete. Any representation to the contrary is a
criminal offense.
This prospectus is dated ______________ ___, _____
TABLE OF CONTENTS
ATMOS ENERGY CORPORATION..........................................................................................1
USE OF PROCEEDS...................................................................................................1
RATIO OF EARNINGS TO FIXED CHARGES................................................................................2
SECURITIES WE MAY ISSUE...........................................................................................2
DESCRIPTION OF DEBT SECURITIES....................................................................................3
DESCRIPTION OF COMMON STOCK......................................................................................22
PLAN OF DISTRIBUTION.............................................................................................26
LEGAL MATTERS....................................................................................................27
EXPERTS..........................................................................................................27
WHERE YOU CAN FIND MORE INFORMATION..............................................................................27
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE..................................................................28
We have not authorized any other person to provide you with any
information or to make any representations about us that is different from, or
in addition to, the information and representations contained in this prospectus
or in any of the documents that are incorporated by reference into this
prospectus. If anyone provides you with different or inconsistent information,
you should not rely on it. You should assume that the information appearing in
this prospectus, as well as the information incorporated by reference, is
accurate as of the dates on the front cover of this prospectus or of the
incorporated document only, unless the information specifically indicates that
another date applies.
The distribution of this prospectus may be restricted by law in certain
jurisdictions. You should inform yourself about and observe these restrictions.
This prospectus does not constitute, and may not be used in connection with, an
offer or solicitation by anyone in any jurisdiction in which the offer or
solicitation is not authorized, or in which the person making the offer or
solicitation is not qualified to do so, or to any person to whom it is unlawful
to make the offer or solicitation.
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CAUTIONARY STATEMENT REGARDING FORWARD-LOOKING STATEMENTS
Statements contained in this prospectus and the documents incorporated
by reference that are not historical facts are "forward-looking statements"
within the meaning of Section 27A of the Securities Act of 1933. Forward-looking
statements are based on management's beliefs as well as assumptions made by, and
information currently available to, management. Because such statements are
based on expectations as to future economic performance and are not statements
of fact, actual results may differ materially from those projected. Important
factors that could cause future results to differ include, but are not limited
to:
o warmer or drier than normal weather in our service territories,
or other weather conditions that would be adverse to our
business;
o national, regional and local economic conditions;
o impact of any future terrorist attacks;
o regulatory and business trends and decisions, including the
impact of pending rate proceedings before state regulatory
commissions;
o successful completion, financing and integration of
acquisitions;
o inflation and the volatility of commodity prices for natural
gas;
o competition from other energy suppliers and alternative forms
of energy;
o further deregulation or "unbundling" of the natural gas
distribution industry;
o hedging and market risk activities; and
o other factors discussed in this prospectus and our other
filings with the SEC.
All of these factors are difficult to predict and many are beyond our control.
Accordingly, while we believe these forward-looking statements to be reasonable,
there can be no assurance that they will approximate actual experience or that
the expectations derived from them will be realized. When used in our documents
or oral presentations, the words "anticipate," "believe," "estimate," "expect,"
"objective," "projection," "forecast," "goal" or similar words are intended to
identify forward-looking statements. We undertake no obligation to update or
revise our forward-looking statements, whether as a result of new information,
future events or otherwise. For further factors you should consider, please
refer to the Management's Discussion and Analysis of Financial Condition and
Results of Operations in our annual report on Form 10-K for the fiscal year
ended September 30, 2001.
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The terms "we," "our" and "us" refer to Atmos Energy Corporation unless
the context suggests otherwise. The term "you" refers to a prospective investor.
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ATMOS ENERGY CORPORATION
We distribute and sell natural gas to approximately 1.4 million
residential, commercial, industrial, agricultural and other customers. We
operate through five divisions in service areas located in Colorado, Georgia,
Illinois, Iowa, Kansas, Kentucky, Louisiana, Missouri, Tennessee, Texas and
Virginia. In addition, we transport natural gas for others through our
distribution system.
We provide natural gas storage services and own or hold an interest in
natural gas storage fields in Kansas, Kentucky and Louisiana to supplement
natural gas used by customers in Kansas, Kentucky, Tennessee, Louisiana and
other states. We also provide energy management and gas marketing services to
industrial customers, municipalities and other local distribution companies. We
also provide electrical power generation to meet peak load demands for a
municipality regulated by the Tennessee Valley Authority. In addition, we market
natural gas to industrial and agricultural customers primarily in West Texas and
to industrial customers in Louisiana.
In September 2001, we entered into a definitive agreement to acquire
Mississippi Valley Gas Company, a privately held natural gas utility, for $150.0
million, consisting of $75.0 million cash and $75.0 million of our common stock.
In addition, we will assume outstanding debt of Mississippi Valley Gas, net of
working capital, of approximately $45.0 million. Mississippi Valley Gas provides
natural gas distribution service to more than 261,500 residential, commercial,
industrial and other customers located primarily in the northern and central
regions of Mississippi. The acquisition is subject to state and federal
regulatory approvals.
HISTORY
We were organized under the laws of Texas in 1983 as Energas Company, a
subsidiary of Pioneer Corporation, for the purposes of owning and operating
Pioneer's natural gas distribution business in Texas. Immediately following the
transfer by Pioneer to us of its gas distribution business, which Pioneer and
its predecessors operated since 1906, Pioneer distributed our outstanding stock
to its shareholders. In September 1988, we changed our name from Energas Company
to Atmos Energy Corporation. As a result of our merger with United Cities Gas
Company in July 1997, we also became incorporated in Virginia.
LOCATION OF EXECUTIVE OFFICES
Our address is 1800 Three Lincoln Centre, 5430 LBJ Freeway, Dallas,
Texas 75240, and our telephone number is (972) 934-9227.
USE OF PROCEEDS
Except as may otherwise be stated in the applicable prospectus
supplement, we intend to use the net proceeds from the sale of the securities
for general corporate purposes, acquisitions, in our business and related
businesses, and the repayment of indebtedness.
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RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth our ratio of earnings to fixed charges
for the periods indicated:
YEARS ENDED SEPTEMBER 30,
------------------------------------------------------------------
2001 2000 1999 1998 1997
---- ---- ---- ---- ----
Ratio.............................. 2.48 2.20 1.53 2.94 1.95
For purposes of computing the ratio of earnings to fixed charges,
earnings consists of the sum of our pretax income from continuing operations and
fixed charges. Fixed charges consist of interest expense, amortization of debt
discount, premium and expense, capitalized interest and a portion of lease
payments considered to represent an interest factor.
SECURITIES WE MAY ISSUE
TYPES OF SECURITIES
The types of securities that we may offer and sell from time to time by
this prospectus are:
o debt securities, which we may issue in one or more series; and
o common stock.
The aggregate initial offering price of all securities sold will not
exceed $600,000,000. We will determine when we sell securities, the amounts of
securities we will sell and the prices and other terms on which we will sell
them. We may sell securities to or through underwriters, through agents or
dealers or directly to purchasers.
PROSPECTUS SUPPLEMENTS
This prospectus provides you with a general description of the debt
securities and common stock we may offer. Each time we offer securities, we will
provide a prospectus supplement that will contain specific information about the
terms of the offering. The prospectus supplement may also add to or change
information contained in this prospectus. In that case, the prospectus
supplement should be read as superseding this prospectus.
In each prospectus supplement, which will be attached to the front of this
prospectus, we will include the following information:
o the type and amount of securities which we propose to sell;
o the initial public offering price of the securities;
o the names of the underwriters, agents or dealers, if any,
through or to which we will sell the securities;
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o the compensation, if any, of those underwriters, agents or
dealers;
o the securities exchanges or automated quotation systems on
which the securities will be listed or traded;
o United States federal income tax considerations applicable to
the securities; and
o any other material information about the offering and sale of
the securities.
For more details on the terms of the securities, you should read the
exhibits filed with our registration statement. You should also read both this
prospectus and any prospectus supplement, together with additional information
described under the heading "Where You Can Find More Information."
DESCRIPTION OF DEBT SECURITIES
We may issue debt securities from time to time in one or more distinct
series. This section summarizes the material terms of the debt securities that
we anticipate will be common to all series. Most of the financial and other
terms of any series of debt securities that we offer and any differences from
the common terms will be described in the prospectus supplement to be attached
to the front of this prospectus.
As required by U.S. federal law for all bonds and notes of companies
that are publicly offered, a document called an "indenture" will govern any debt
securities that we issue. An indenture is a contract between us and a financial
institution acting as trustee on your behalf. We have entered into an indenture
with SunTrust Bank, which acts as trustee, relating to the debt securities that
are offered by this prospectus. The indenture is subject to the Trust Indenture
Act of 1939. The trustee has the following two main roles:
o the trustee can enforce your rights against us if we default;
there are some limitations on the extent to which the trustee
acts on your behalf, which are described later in this
prospectus; and
o the trustee will perform certain administrative duties for us,
which include sending you interest payments and notices.
As this section is a summary of the material terms of the debt
securities being offered by this prospectus, it does not describe every aspect
of the debt securities. We urge you to read the indenture and the other
documents we file with the SEC relating to the debt securities because the
indenture and those other documents, and not this description, will define your
rights as a holder of our debt securities. We have filed the indenture as an
exhibit to the registration statement that we have filed with the SEC, and we
will file any such other document as an exhibit to an annual, quarterly or other
report that we file with the SEC. See "Where You Can Find More Information," for
information on how to obtain copies of the indenture and any such other
document. References to the "indenture" mean the indenture and any other
document that defines your rights as a holder of debt securities that we have
filed as an exhibit to the registration statement relating to this offering or
will file as an exhibit to an annual, quarterly or other report that we file
with the SEC.
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GENERAL
The debt securities will be our unsecured obligations and will rank
equally with all of our other unsecured and unsubordinated Indebtedness.
You should read the prospectus supplement for the following terms of
the series of debt securities offered by the prospectus supplement. Our board of
directors will establish the following terms before issuance of the series:
o the title of the debt securities;
o the aggregate principal amount of the debt securities, the
percentage of their principal amount at which the debt
securities will be issued, and the date or dates when the
principal of the debt securities will be payable or how those
dates will be determined;
o the interest rate or rates, which may be fixed or variable,
that the debt securities will bear, if any, and how the rate or
rates will be determined;
o the date or dates from which any interest will accrue or how
the date or dates will be determined, the date or dates on
which any interest will be payable, any regular record dates
for these payments or how these dates will be determined and
the basis on which any interest will be calculated, if other
than on the basis of a 360-day year of twelve 30-day months;
o the place or places, if any, other than or in addition to New
York City, of payment, transfer or exchange of the debt
securities, and where notices or demands to or upon us in
respect of the debt securities may be served;
o any optional redemption provisions;
o any sinking fund or other provisions that would obligate us to
repurchase or redeem the debt securities;
o whether the amount of payments of principal of, any premium on,
or interest on the debt securities will be determined with
reference to an index, formula or other method, which could be
based on one or more commodities, equity indices or other
indices, and how these amounts will be determined;
o any changes or additions to the events of default or our
covenants with respect to the debt securities;
o if not the principal amount of the debt securities, the portion
of the principal amount that will be payable upon acceleration
of the maturity of the debt securities or how that portion will
be determined;
o any changes or additions to the provisions concerning
defeasance and covenant defeasance contained in the indenture
that will be applicable to the debt securities;
o any provisions granting special rights to the holders of the
debt securities upon the occurrence of specified events;
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o if other than the trustee, the name of the paying agent,
security registrar or transfer agent for the debt securities;
o if we do not issue the debt securities in book-entry form only
to be held by The Depository Trust Company, as depository,
whether we will issue the debt securities in certificated form
or the identity of any alternative depository;
o the person to whom any interest in a debt security will be
payable, if other than the registered holder at the close of
business on the regular record date;
o the denomination or denominations in which the debt securities
will be issued, if other than denominations of $1,000 or any
integral multiples;
o any provisions requiring us to pay Additional Amounts on the
debt securities to any holder who is not a United States person
in respect of any tax, assessment or governmental charge and,
if so, whether we will have the option to redeem the debt
securities rather than pay the Additional Amounts; and
o any other material terms of the debt securities or the
indenture, which may not be consistent with the terms set forth
in this prospectus.
For purposes of this prospectus, any reference to the payment of
principal of, any premium on, or interest on the debt securities will include
Additional Amounts if required by the terms of the debt securities.
The indenture does not limit the amount of debt securities that we are
authorized to issue from time to time. The indenture also provides that there
may be more than one trustee thereunder, each for one or more series of debt
securities. If a trustee is acting under the indenture with respect to more than
one series of debt securities, the debt securities for which it is acting would
be treated as if issued under separate indentures. If there is more than one
trustee under the indenture, the powers and trust obligations of each trustee
will apply only to the debt securities of the separate series for which it is
trustee.
We may issue debt securities with terms different from those of debt
securities already issued. Without the consent of the holders of the outstanding
debt securities, we may reopen a previous issue of a series of debt securities
and issue additional debt securities of that series unless the reopening was
restricted when we created that series.
There is no requirement that we issue debt securities in the future
under the indenture, and we may use other indentures or documentation,
containing different provisions in connection with future issues of other debt
securities.
We may issue the debt securities as "original issue discount
securities," which are debt securities, including any zero-coupon debt
securities, that are issued and sold at a discount from their stated principal
amount. Original issue discount securities provide that, upon acceleration of
their maturity, an amount less than their principal amount will become due and
payable. We will describe the U.S. federal income tax consequences and other
considerations applicable to original issue discount securities in any
prospectus supplement relating to them.
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HOLDERS OF DEBT SECURITIES
BOOK-ENTRY HOLDERS. We will issue debt securities in book-entry form
only, unless we specify otherwise in the applicable prospectus supplement. This
means debt securities will be represented by one or more global securities
registered in the name of a financial institution that holds them as depository
on behalf of other financial institutions that participate in the depository's
book-entry system. These participating institutions, in turn, hold beneficial
interests in the debt securities on behalf of themselves or their customers.
Under the indenture, we will recognize as a holder only the person in
whose name a debt security is registered. Consequently, for debt securities
issued in global form, we will recognize only the depository as the holder of
the debt securities and we will make all payments on the debt securities to the
depository. The depository passes along the payments it receives to its
participants, which in turn pass the payments along to their customers who are
the beneficial owners.
The depository and its participants do so under agreements they have
made with one another or with their customers; they are not obligated to do so
under the terms of the debt securities.
As a result, you will not own debt securities directly. Instead, you
will own beneficial interests in a global security, through a bank, broker or
other financial institution that participates in the depository's book-entry
system or holds an interest through a participant. As long as the debt
securities are issued in global form, you will be an indirect holder, and not a
holder, of the debt securities.
STREET NAME HOLDERS. In the future we may terminate a global security
or issue debt securities initially in non-global form. In these cases, you may
choose to hold your debt securities in your own name or in "street name." Debt
securities held in street name would be registered in the name of a bank, broker
or other financial institution that you choose, and you would hold only a
beneficial interest in those debt securities through an account you maintain at
that institution.
For debt securities held in street name, we will recognize only the
intermediary banks, brokers and other financial institutions in whose names the
debt securities are registered as the holders of those debt securities, and we
will make all payments on those debt securities to them. These institutions pass
along the payments they receive to their customers who are the beneficial
owners, but only because they agree to do so in their customer agreements or
because they are legally required to do so. If you hold debt securities in
street name you will be an indirect holder, and not a holder, of those debt
securities.
LEGAL HOLDERS. Our obligations, as well as the obligations of the
trustee and those of any third parties employed by us or the trustee, run only
to the legal holders of the debt securities. We do not have obligations to you
if you hold beneficial interests in global securities, in street name or by any
other indirect means. This will be the case whether you choose to be an indirect
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holder of a debt security or have no choice because we are issuing the debt
securities only in global form.
For example, once we make a payment or give a notice to the holder, we
have no further responsibility for the payment or notice even if that holder is
required, under agreements with depository participants or customers or by law,
to pass it along to the indirect holders but does not do so. Similarly, if we
want to obtain the approval of the holders for any purpose (for example, to
amend the indenture or to relieve us of the consequences of a default or of our
obligation to comply with a particular provision of the indenture) we would seek
the approval only from the holders, and not the indirect holders, of the debt
securities. Whether and how the holders contact the indirect holders is up to
the holders.
When we refer to you, we mean those who invest in the debt securities
being offered by this prospectus, whether they are the holders or only indirect
holders of those debt securities. When we refer to your debt securities, we mean
the debt securities in which you hold a direct or indirect interest.
SPECIAL CONSIDERATIONS FOR INDIRECT HOLDERS. If you hold debt
securities through a bank, broker or other financial institution, either in
book-entry form or in street name, you should check with your own institution to
find out:
o how it handles securities payments and notices;
o whether it imposes fees or charges;
o how it would handle a request for the holders' consent, if ever
required;
o whether and how you can instruct it to send you debt securities
registered in your own name so you can be a holder, if that is
permitted in the future;
o how it would exercise rights under the debt securities if there
were a default or other event triggering the need for holders
to act to protect their interests; and
o if the debt securities are in book-entry form, how the
depository's rules and procedures will affect these matters.
GLOBAL SECURITIES
WHAT IS A GLOBAL SECURITY? We will issue each debt security under the
indenture in book-entry form only, unless we specify otherwise in the applicable
prospectus supplement. A global security represents one or any other number of
individual debt securities. Generally, all debt securities represented by the
same global securities will have the same terms. We may, however, issue a global
security that represents multiple debt securities that have different terms and
are issued at different times. We call this kind of global security a master
global security.
Each debt security issued in book-entry form will be represented by a
global security that we deposit with and register in the name of a financial
institution or its nominee that we select. The financial institution that we
select for this purpose is called the depository. Unless we specify otherwise in
the applicable prospectus supplement, The Depository Trust Company, New
7
York, New York, known as DTC, will be the depository for all debt securities
issued in book-entry form.
A global security may not be transferred to or registered in the name
of anyone other than the depository or its nominee, unless special termination
situations arise. We describe those situations below under "Special Situations
When a Global Security Will Be Terminated." As a result of these arrangements,
the depository, or its nominee, will be the sole registered owner and holder of
all debt securities represented by a global security, and investors will be
permitted to own only beneficial interests in a global security. Beneficial
interests must be held by means of an account with a broker, bank or other
financial institution that in turn has an account with the depository or with
another institution that does. Thus, if your security is represented by a global
security, you will not be a holder of the debt security, but only an indirect
holder of a beneficial interest in the global security.
SPECIAL CONSIDERATIONS FOR GLOBAL SECURITIES. We do not recognize an
indirect holder as a holder of debt securities and instead deal only with the
depository that holds the global security. The account rules of your financial
institution and of the depository, as well as general laws relating to
securities transfers, will govern your rights relating to a global security.
If we issue debt securities only in the form of a global security, you
should be aware of the following:
o you cannot cause the debt securities to be registered in your
name, and cannot obtain non-global certificates for your
interest in the debt securities, except in the special
situations that we describe below;
o you will be an indirect holder and must look to your own bank
or broker for payments on the debt securities and protection of
your legal rights relating to the debt securities, as we
describe under "Holders of Debt Securities" above;
o you may not be able to sell interests in the debt securities to
some insurance companies and to other institutions that are
required by law to own their securities in non-book-entry form;
o you may not be able to pledge your interest in a global
security in circumstances where certificates representing the
debt securities must be delivered to the lender or other
beneficiary of the pledge in order for the pledge to be
effective;
o the depository's policies, which may change from time to time,
will govern payments, transfers, exchanges and other matters
relating to your interest in a global security. We and the
trustee have no responsibility for any aspect of the
depository's actions or for its records of ownership interests
in a global security. We and the trustee also do not supervise
the depository in any way;
o DTC requires, and other depositories may require, that those
who purchase and sell interests in a global security within its
book-entry system use immediately available funds and your
broker or bank may require you to do so as well; and
o financial institutions that participate in the depository's
book-entry system, and through which you hold your interest in
a global security, may also have their
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own policies affecting payments, notices and other matters
relating to the debt security. Your chain of ownership may
contain more than one financial intermediary. We do not
monitor and are not responsible for the actions of any of
those intermediaries.
SPECIAL SITUATIONS WHEN A GLOBAL SECURITY WILL BE TERMINATED. In a few
special situations described below, a global security will be terminated and
interests in it will be exchanged for certificates in non-global form
representing the debt securities it represented. After that exchange, you will
be able to choose whether to hold the debt securities directly or in street
name. You must consult your own bank or broker to find out how to have your
interests in a global security transferred on termination to your own name, so
that you will be a holder. We have described the rights of holders and street
name investors above under "Holders of Debt Securities."
The special situations for termination of a global security are as
follows:
o if the depository notifies us that it is unwilling, unable or
no longer qualified to continue as depository for that global
security and we do not appoint another institution to act as
depository within 60 days;
o if we notify the trustee that we wish to terminate that global
security; or
o if an event of default has occurred with regard to debt
securities represented by that global security and has not been
cured or waived; we discuss defaults later under "Events of
Default."
If a global security is terminated, only the depository, and not we or
the trustee, is responsible for deciding the names of the intermediary banks,
brokers and other financial institutions in whose names the debt securities
represented by the global security are registered, and, therefore, who will be
the holders of those debt securities.
COVENANTS
This section summarizes the material covenants in the indenture. Please
refer to the prospectus supplement for information about any changes to our
covenants, including any addition or deletion of a covenant.
LIMITATIONS ON LIENS. We covenant in the indenture that we will not,
and will not permit any of our Restricted Subsidiaries to, create, incur, issue
or assume any Indebtedness secured by any Lien on any Principal Property, or on
shares of stock or Indebtedness of any Restricted Subsidiary, known as
Restricted Securities, without making effective provision for the outstanding
debt securities, other than any outstanding debt securities not entitled to this
covenant, to be secured by the Lien equally and ratably with, or prior to, the
Indebtedness and obligations secured or to be secured thereby for so long as the
Indebtedness or obligations are so secured, except that the foregoing
restriction does not apply to:
o any Lien existing on the date of the first issuance of debt
securities under the indenture, including the Liens on property
or after-acquired property of ours or
9
our Subsidiaries under the Greeley Indenture or the United
Cities Indenture, or such other date as may be specified in a
prospectus supplement for an applicable series of debt
securities;
o any Lien on any Principal Property or Restricted Securities of
any person existing at the time that person is merged or
consolidated with or into us or a Restricted Subsidiary, or
this person becomes a Restricted Subsidiary, or arising
thereafter otherwise than in connection with the borrowing of
money arranged thereafter and pursuant to contractual
commitments entered into prior to and not in contemplation of
the person's becoming a Restricted Subsidiary;
o any Lien on any Principal Property existing at the time we or a
Restricted Subsidiary acquire the Principal Property, whether
or not the Lien is assumed by us or the Restricted Subsidiary,
provided that this Lien may not extend to any other Principal
Property of ours or any Restricted Subsidiary;
o any Lien on any Principal Property, including any improvements
on an existing Principal Property, of ours or any Restricted
Subsidiary, and any Lien on the shares of stock of a Restricted
Subsidiary that was formed or is held for the purpose of
acquiring and holding the Principal Property, in each case to
secure all or any part of the cost of acquisition, development,
operation, construction, alteration, repair or improvement of
all or any part of the Principal Property, or to secure
Indebtedness incurred by us or a Restricted Subsidiary for the
purpose of financing all or any part of that cost, provided
that the Lien is created prior to, at the time of, or within 12
months after the latest of, the acquisition, completion of
construction or improvement or commencement of commercial
operation of that Principal Property and, provided further,
that the Lien may not extend to any other Principal Property of
ours or any Restricted Subsidiary, other than any currently
unimproved real property on which the Principal Property has
been constructed or developed or the improvement is located;
o any Lien on any Principal Property or Restricted Securities to
secure Indebtedness owed to us or to a Restricted Subsidiary;
o any Lien in favor of a governmental body to secure advances or
other payments under any contract or statute or to secure
Indebtedness incurred to finance the purchase price or cost of
constructing or improving the property subject to the Lien;
o any Lien created in connection with a project financed with,
and created to secure, Non-Recourse Indebtedness;
o any Lien required to be placed on any of our property or any of
the property of our Subsidiaries under the provisions of the
Greeley Indenture, the United Cities Indenture or the Note
Purchase Agreements;
o any extension, renewal, substitution or replacement, or
successive extensions, renewals, substitutions or replacements,
in whole or in part, of any Lien referred to in any of the
bullet points above, provided that the Indebtedness secured may
not exceed the principal amount of Indebtedness that is secured
at the time of the renewal or refunding, and that the renewal
or refunding Lien must be limited to
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all or any part of the same property and improvements, shares
of stock or Indebtedness that secured the Lien that was
renewed or refunded; or
o any Lien not permitted above securing Indebtedness that,
together with the aggregate outstanding principal amount of
other secured Indebtedness that would otherwise be subject to
the above restrictions, excluding Indebtedness secured by Liens
permitted under the above exceptions, and the Attributable Debt
in respect of all Sale and Leaseback Transactions, not
including Attributable Debt in respect of any Sale and
Leaseback Transactions described in the last two bullet points
in the next succeeding paragraph, would not then exceed 15% of
our Consolidated Net Tangible Assets.
LIMITATION ON SALE AND LEASEBACK TRANSACTIONS. We covenant in the
indenture that we will not, and will not permit any Restricted Subsidiary to,
enter into any Sale and Leaseback Transaction unless:
o we or a Restricted Subsidiary would be entitled, without
securing the Outstanding Securities, to incur Indebtedness
secured by a Lien on the Principal Property that is the
subject of the Sale and Leaseback Transaction;
o the Attributable Debt associated with the Sale and Leaseback
Transaction would be in an amount permitted under the last
bullet point of the preceding paragraph;
o the proceeds received in respect of the Principal Property so
sold and leased back at the time of entering into the Sale and
Leaseback Transaction are used for our business and operations
or the business and operations of any Subsidiary; or
o within 12 months after the sale or transfer, an amount equal
to the proceeds received in respect of the Principal Property
sold and leased back at the time of entering into the Sale and
Leaseback Transaction is applied to the prepayment, other than
mandatory prepayment, of any Outstanding Securities or any
Funded Indebtedness owed by us or a Restricted Subsidiary,
other than Funded Indebtedness that is held by us or any
Restricted Subsidiary or our Funded Indebtedness that is
subordinate in right of payment to any Outstanding Securities.
DEFINITIONS. Following are definitions of some of the terms used in the
covenants described above.
"ATTRIBUTABLE DEBT" means, as to any lease under which a person is at
the time liable for rent, at a date that liability is to be determined, the
total net amount of rent required to be paid by that person under the lease
during the remaining term, excluding amounts required to be paid on account of
maintenance and repairs, services, insurance, taxes, assessments, water rates
and similar charges and contingent rents, discounted from the respective due
dates thereof at the weighted average of the rates of interest, or Yield to
Maturity, in the case of Original Issue Discount Securities, borne by the then
Outstanding Securities, compounded annually.
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"CAPITAL STOCK" means any and all shares, interests, rights to
purchase, warrants, options, participations or other equivalents of or
interests, however designated, in stock issued by a corporation.
"CONSOLIDATED NET TANGIBLE ASSETS" means the aggregate amount of
assets, less applicable reserves and other properly deductible items, after
deducting:
o all current liabilities, excluding any portion thereof
constituting Funded Indebtedness; and
o all goodwill, trade names, trademarks, patents, unamortized
debt discount and expense and other like intangibles,
all as set forth on our most recent consolidated balance sheet contained in our
latest quarterly or annual report filed with the SEC under the Securities
Exchange Act of 1934 and computed in accordance with generally accepted
accounting principles.
"FUNDED INDEBTEDNESS" means, as applied to any person, all Indebtedness
of the person maturing after, or renewable or extendible at the option of the
person beyond, 12 months from the date of determination.
"GREELEY INDENTURE" means the Indenture of Mortgage and Deed of Trust,
dated as of March 1, 1957, from Greeley Gas Company to U.S. Bank National
Association, formerly The Central Bank and Trust Company, as Trustee, as amended
and supplemented through December 1, 1993, the Indenture of Mortgage and Deed of
Trust through the Tenth Supplemental Indenture by Atmos to U.S. Bank National
Association, formerly The Central Bank and Trust Company, as Trustee, as
amended, supplemented or otherwise modified from time to time.
"INDEBTEDNESS" means obligations for money borrowed, evidenced by
notes, bonds, debentures or other similar evidences of indebtedness.
"LIEN" means any lien, mortgage, pledge, encumbrance, charge or
security interest securing Indebtedness; provided, however, that the following
types of transactions will not be considered, for purposes of this definition,
to result in a Lien:
o any acquisition by us or any Restricted Subsidiary of any
property or assets subject to any reservation or exception
under the terms of which any vendor, lessor or assignor
creates, reserves or excepts or has created, reserved or
excepted an interest in oil, gas or any other mineral in place
or the proceeds of that interest;
o any conveyance or assignment whereby we or any Restricted
Subsidiary conveys or assigns to any person or persons an
interest in oil, gas or any other mineral in place or the
proceeds of that interest;
o any Lien upon any property or assets either owned or leased by
us or a Restricted Subsidiary or in which we or any Restricted
Subsidiary owns an interest that secures for the benefit of
the person or persons paying the expenses of developing or
conducting operations for the recovery, storage,
transportation or sale of the
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mineral resources of the property or assets, or property or
assets with which it is unitized, the payment to the person or
persons of our proportionate part or the Restricted
Subsidiary's proportionate part of the development or
operating expenses;
o any hedging arrangements entered into in the ordinary course
of business, including any obligation to deliver any mineral,
commodity or asset; or
o any guarantees that we make for the repayment of Indebtedness
of any Subsidiary or guarantees by any Subsidiary of the
repayment of Indebtedness of any entity, including
Indebtedness of Woodward Marketing, L.L.C.
"NON-RECOURSE INDEBTEDNESS" means, at any time, Indebtedness incurred
after the date of the indenture by us or a Restricted Subsidiary in connection
with the acquisition of property or assets by us or a Restricted Subsidiary or
the financing of the construction of or improvements on property, whenever
acquired, provided that, under the terms of this Indebtedness and under
applicable law, the recourse at the time and thereafter of the lenders with
respect to this Indebtedness is limited to the property or assets so acquired,
or the construction or improvements, including Indebtedness as to which a
performance or completion guarantee or similar undertaking was initially
applicable to the Indebtedness or the related property or assets if the
guarantee or similar undertaking has been satisfied and is no longer in effect.
Indebtedness which is otherwise Non-Recourse Indebtedness will not lose its
character as Non-Recourse Indebtedness because there is recourse to the
borrower, any guarantor or any other person for (a) environmental
representations, warranties or indemnities or (b) indemnities for and
liabilities arising from fraud, misrepresentation, misapplication or non-payment
of rents, profits, insurance and condemnation proceeds and other sums actually
received from secured assets to be paid to the lender, waste and mechanics'
liens or similar matters.
"NOTE PURCHASE AGREEMENTS" refers to the following note purchase
agreements, as amended, supplemented or otherwise modified from time to time,
between us and the following parties:
o John Hancock Mutual Life Insurance Company, dated December 21,
1987;
o Mellon Bank, N.A., Trustee under Master Trust Agreement of
AT&T Corporation, dated January 1, 1984, for Employee Pension
Plans--AT&T--John Hancock--Private Placement, dated December
21, 1987, which agreement is identical to the Hancock
agreement listed above except for the parties and the amounts;
o John Hancock Mutual Life Insurance Company, dated October 11,
1989;
o The Variable Annuity Life Insurance Company, dated August 29,
1991;
o The Variable Annuity Life Insurance Company, dated August 31,
1992; and
o New York Life Insurance Company, New York Life Insurance and
Annuity Corporation, The Variable Annuity Life Insurance
Company, American General Life Insurance Company and Merit
Life Insurance Company, dated November 14, 1994.
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"PRINCIPAL PROPERTY" means any natural gas distribution property
located in the United States, except any property that in the opinion of our
board of directors is not of material importance to the total business conducted
by us and of our consolidated Subsidiaries.
"RESTRICTED SUBSIDIARY" means any Subsidiary the amount of Consolidated
Net Tangible Assets of which constitutes more than 10% of the aggregate amount
of Consolidated Net Tangible Assets of us and our Subsidiaries.
"SALE AND LEASEBACK TRANSACTION" means any arrangement with any person
in which we or any Restricted Subsidiary leases any Principal Property that has
been or is to be sold or transferred by us or the Restricted Subsidiary to that
person, other than:
o a lease for a term, including renewals at the option of the
lessee, of not more than three years or classified as an
operating lease under generally accepted accounting
principles;
o leases between us and a Restricted Subsidiary or between
Restricted Subsidiaries; and
o leases of a Principal Property executed by the time of, or
within 12 months after the latest of, the acquisition, the
completion of construction or improvement, or the commencement
of commercial operation, of the Principal Property.
"SUBSIDIARY" of ours means:
o a corporation, a majority of whose Capital Stock with rights,
under ordinary circumstances, to elect directors is owned,
directly or indirectly, at the date of determination, by us,
by one or more of our Subsidiaries or by us and one or more of
our Subsidiaries; or
o any other person, other than a corporation, in which at the
date of determination we, one or more of our Subsidiaries or
we and one or more of our Subsidiaries, directly or
indirectly, have at least a majority ownership and power to
direct the policies, management and affairs of that person.
"UNITED CITIES INDENTURE" means the Indenture of Mortgage, dated as of
July 15, 1959, from United Cities Gas Company to U.S. Bank Trust National
Association, formerly First Trust of Illinois, National Association, and M.J.
Kruger, as Trustees, as amended, supplemented or otherwise modified from time to
time, the Indenture of Mortgage through the Twenty-Second Supplemental Indenture
by us to U.S. Bank Trust National Association, formerly First Trust National
Association, and Russell C. Bergman, as Trustees, as amended, supplemented, or
otherwise modified from time to time.
CONSOLIDATION, MERGER OR SALE OF ASSETS
Under the terms of the indenture, we are generally permitted to
consolidate with or merge into another entity. We are also permitted to sell or
transfer our assets substantially as an entirety
14
to another entity. However, we may not take any of these actions unless all of
the following conditions are met:
o the resulting entity must agree to be legally responsible for
all our obligations under the debt securities and the
indenture;
o the transaction must not cause a default or an Event of
Default;
o the resulting entity must be organized under the laws of the
United States or one of the states or the District of
Columbia; and
o we must deliver an officers' certificate and legal opinion to
the trustee with respect to the transaction.
In the event that we engage in one of these transactions and comply
with the conditions listed above, we would be discharged from all our
obligations and covenants under the indenture and all obligations under the
Outstanding Securities, with the successor corporation or person succeeding to
our obligations and covenants.
In the event that we engage in one of these transactions, the indenture
provides that, if any Principal Property or Restricted Securities would
thereupon become subject to any Lien, the debt securities, other than any debt
securities not entitled to the benefit of specified covenants, must be secured,
as to such Principal Property or Restricted Securities, equally and ratably
with, or prior to, the indebtedness or obligations that upon the occurrence of
such transaction would become secured by the Lien, unless the Lien could be
created under the indenture without equally and ratably securing the debt
securities.
MODIFICATION OR WAIVER
There are two types of changes that we can make to the indenture and
the debt securities.
CHANGES REQUIRING APPROVAL. With the approval of the holders of at
least a majority in principal amount of all outstanding debt securities of each
series affected, we may make any changes, additions or deletions to any
provisions of the indenture applicable to the affected series, or modify the
rights of the holders of the debt securities of the affected series. However,
without the consent of each holder affected, we cannot:
o change the stated maturity of the principal of, any premium
on, or the interest on a debt security;
o change any of our obligations to pay Additional Amounts;
o reduce the amount payable upon acceleration of maturity
following the default of an Indexed Indenture security or an
Original Issue Discount Security;
o adversely affect any right of repayment at your option;
o change the place of payment of a debt security;
o impair your right to sue for payment;
o adversely affect any right to convert or exchange a debt
security;
15
o reduce the percentage of holders of debt securities whose
consent is needed to modify or amend the indenture;
o reduce the percentage of holders of debt securities whose
consent is needed to waive compliance with any provisions of
the indenture or to waive any defaults; and
o modify any of the provisions of the indenture dealing with
modification and waiver in any other respect, except to
increase any percentage of consents required to amend the
indenture or for any waiver or to add to the provisions that
cannot be modified without the approval of each affected
holder.
CHANGES NOT REQUIRING APPROVAL. The second type of change does not
require any vote by the holders of the debt securities. This type is limited to
clarifications and certain other changes that would not adversely affect holders
of the outstanding debt securities in any material respect. Nor do we need any
approval to make any change that affects only debt securities to be issued under
the indenture after the changes take effect.
FURTHER DETAILS CONCERNING VOTING. When taking a vote, we will use the
following rules to decide how much principal amount to attribute to a debt
security:
o for Original Issue Discount Securities, we will use the
principal amount that would be due and payable on the voting
date if the maturity of the debt securities were accelerated
to that date because of a default; and
o for debt securities whose principal amount is not known (for
example, because it is based on an index) we will use a
special rule for that debt security described in the
prospectus supplement.
Debt securities will not be considered outstanding, and therefore not
eligible to vote, if we have deposited or set aside in trust money for their
payment or redemption. Debt securities will also not be eligible to vote if they
have been fully defeased as described later under "Defeasance and Covenant
Defeasance."
BOOK-ENTRY AND OTHER INDIRECT HOLDERS SHOULD CONSULT THEIR BANKS OR
BROKERS FOR INFORMATION ON HOW APPROVAL MAY BE GRANTED OR DENIED IF WE SEEK TO
CHANGE THE INDENTURE OR THE DEBT SECURITIES OR REQUEST A WAIVER.
EVENTS OF DEFAULT
You will have special rights if an Event of Default occurs as to the
debt securities of your series that is not cured, as described later in this
subsection. Please refer to the prospectus supplement for information about any
changes to the Events of Default or our covenants, including any addition of a
covenant or other provision providing event risk or similar protection.
WHAT IS AN EVENT OF DEFAULT? The term "Event of Default" as to the debt
securities of your series means any of the following:
16
o we do not pay interest on a debt security of the series within
30 days of its due date;
o we do not pay the principal of or any premium, if any, on a
debt security of the series on its due date;
o we do not deposit any sinking fund payment when and as due by
the terms of any debt securities requiring such payment;
o we remain in breach of a covenant or agreement in the
indenture, other than a covenant or agreement for the benefit
of less than all of the holders of the debt securities, for 60
days after we receive written notice stating that we are in
breach from the trustee or the holders of at least 25% of the
principal amount of the debt securities of the series;
o we or a Restricted Subsidiary of ours is in default under any
matured or accelerated agreement or instrument under which we
have outstanding Indebtedness for borrowed money or
guarantees, which individually are in excess of $25,000,000,
and we have not cured any acceleration within 15 days after we
receive notice of this default from the trustee or the holders
of at least 25% of the principal amount of the debt securities
of the series, unless prior to the entry of judgment for the
trustee, we or the Restricted Subsidiary remedy the default or
the default is waived by the holders of the indebtedness;
o we file for bankruptcy or other events of bankruptcy,
insolvency or reorganization occur; or
o any other Event of Default provided for the benefit of debt
securities of the series.
An Event of Default for a particular series of debt securities will not
necessarily constitute an Event of Default for any other series of debt
securities issued under the indenture.
The trustee may withhold notice to the holders of debt securities of a
particular series of any default if it considers its withholding of notice to be
in the interest of the holders of that series, except that the trustee may not
withhold notice of a default in the payment of the principal of, any premium on,
or the interest on the debt securities.
REMEDIES IF AN EVENT OF DEFAULT OCCURS. If an event of default has
occurred and is continuing, the trustee or the holders of at least 25% in
principal amount of the debt securities of the affected series may declare the
entire principal amount of all the debt securities of that series to be due and
immediately payable by notifying us, and the trustee, if the holders give
notice, in writing. This is called a declaration of acceleration of maturity.
If the maturity of any series of debt securities is accelerated and a
judgment for payment has not yet been obtained, the holders of a majority in
principal amount of the debt securities of that series may cancel the
acceleration if all events of default other than the non-payment of principal or
interest on the debt securities of that series that have become due solely by a
declaration of acceleration are cured or waived, and we deposit with the trustee
a sufficient sum of money to pay:
17
o all overdue interest on outstanding debt securities of that
series;
o all unpaid principal of any outstanding debt securities of
that series that has become due otherwise than by a
declaration of acceleration, and interest on the unpaid
principal;
o all interest on the overdue interest; and
o all amounts paid or advanced by the trustee for that series
and reasonable compensation of the trustee.
Except in cases of default, where the trustee has some special duties,
the trustee is not required to take any action under the indenture at the
request of any holders unless the holders offer the trustee reasonable
protection from expenses and liability. This is called an indemnity. If
reasonable indemnity is provided, the holders of a majority in principal amount
of the outstanding debt securities of the relevant series may direct the time,
method and place of conducting any lawsuit or other formal legal action seeking
any remedy available to the trustee. The trustee may refuse to follow those
directions if the directions conflict with any law or the indenture or expose
the trustee to personal liability. No delay or omission in exercising any right
or remedy will be treated as a waiver of that right, remedy or Event of Default.
Before you are allowed to bypass the trustee and bring your own lawsuit
or other formal legal action or take other steps to enforce your rights or
protect your interest relating to the debt securities, the following must occur:
o you must give the trustee written notice that an Event of
Default has occurred and remains uncured;
o the holders of at least 25% in principal amount of all
outstanding debt securities of the relevant series must make a
written request that the trustee take action because of the
default and must offer reasonable indemnity to the trustee
against the cost and other liabilities of taking that action;
o the trustee must not have instituted a proceeding for 60 days
after receipt of the above notice and offer of indemnity; and
o the holders of a majority in principal amount of the debt
securities must not have given the trustee a direction
inconsistent with the above notice during the 60-day period.
However, you are entitled at any time to bring a lawsuit for the
payment of money due on your debt securities on or after the due date without
complying with the foregoing.
Holders of a majority in principal amount of the debt securities of the
affected series may waive any past defaults other than the following:
o the payment of principal, any premium, interest or Additional
Amounts on any debt security or related coupon; or
18
o in respect of a covenant that under the indenture cannot be
modified or amended without the consent of each holder
affected.
Each year, we will furnish the trustee with a written statement of two
of our officers certifying that, to their knowledge, we are in compliance with
the indenture and the debt securities, or else specifying any default.
BOOK-ENTRY AND OTHER INDIRECT HOLDERS SHOULD CONSULT THEIR BANKS OR
BROKERS FOR INFORMATION ON HOW TO GIVE NOTICE OR DIRECTION TO OR MAKE A REQUEST
OF THE TRUSTEE AND HOW TO DECLARE OR CANCEL AN ACCELERATION.
DEFEASANCE AND COVENANT DEFEASANCE
Unless we provide otherwise in the applicable prospectus supplement,
the provisions for full defeasance and covenant defeasance described below apply
to each series of debt securities. In general, we expect these provisions to
apply to each debt security that is not a floating rate or indexed debt
security.
FULL DEFEASANCE. If there is a change in U.S. federal tax law, as
described below, we can legally release ourselves from all payment and other
obligations on the debt securities, called "full defeasance," if we put in place
the following arrangements for you to be repaid:
o we must deposit in trust for the benefit of all holders of the
debt securities a combination of money and obligations issued
or guaranteed by the U.S. government that will generate enough
cash to make interest, principal and any other payments on the
debt securities on their various due dates; and
o we must deliver to the trustee a legal opinion confirming that
there has been a change in current federal tax law or an IRS
ruling that lets us make the above deposit without causing you
to be taxed on the debt securities any differently than if we
did not make the deposit and just repaid the debt securities
ourselves at maturity. Under current federal tax law, the
deposit and our legal release from the debt securities would
be treated as though we paid you your share of the cash and
notes or bonds at the time the cash and notes or bonds are
deposited in trust in exchange for your debt securities, and
you would recognize gain or loss on the debt securities at the
time of the deposit.
If we ever did accomplish defeasance, as described above, you would
have to rely solely on the trust deposit for repayment of the debt securities.
You could not look to us for repayment in the event of any shortfall.
Conversely, the trust deposit would most likely be protected from claims of our
lenders and other creditors if we ever become bankrupt or insolvent. If we
accomplish a defeasance, we would retain only the obligations to register the
transfer or exchange of the debt securities, to maintain an office or agency in
respect of the debt securities and to hold moneys for payment in trust.
COVENANT DEFEASANCE. Under current federal tax law, we can make the
same type of deposit described above and be released from the restrictive
covenants in the indenture discussed
19
above and specified in a prospectus supplement. This is called "covenant
defeasance." In that event, you would lose the protection of those covenants but
would gain the protection of having money and obligations issued or guaranteed
by the U.S. government set aside in trust to repay the debt securities. In order
to achieve covenant defeasance, we must do the following:
o deposit in trust for your benefit and the benefit of all other
direct holders of the debt securities a combination of money
and obligations issued or guaranteed by the U.S. government
that will generate enough cash to make interest, principal and
any other payments on the debt securities on their various due
date; and
o deliver to the trustee a legal opinion of our counsel
confirming that, under current federal income tax law, we may
make the above deposit without causing you to be taxed on the
debt securities any differently than if we did not make the
deposit and just repaid the debt securities ourselves at
maturity.
If we accomplish covenant defeasance, you can still look to us for
repayment of the debt securities if there were a shortfall in the trust deposit
or the trustee is prevented from making payment. In fact, if one of the
remaining Events of Default occurred, such as our bankruptcy, and the debt
securities became immediately due and payable, there may be a shortfall.
Depending on the event causing the default, you may not be able to obtain
payment of the shortfall.
DEBT SECURITIES ISSUED IN NON-GLOBAL FORM
If the debt securities cease to be issued in global form, they will be
issued:
o only in fully registered form;
o without interest coupons; and
o unless we indicate otherwise in the prospectus supplement, in
denominations of $1,000 and amounts that are integral
multiples of $1,000.
Holders may exchange their debt securities that are not in global form
for debt securities of smaller denominations or combined into fewer debt
securities of larger denominations, as long as the total principal amount is not
changed.
Holders may exchange or transfer their debt securities at the office of
the trustee. We may appoint the trustee to act as our agent for registering debt
securities in the names of holders transferring debt securities, or we may
appoint another entity to perform these functions or perform them ourselves.
Holders will not be required to pay a service charge to transfer or
exchange their debt securities, but they may be required to pay for any tax or
other governmental charge associated with the transfer or exchange. The transfer
or exchange will be made only if our transfer agent is satisfied with the
holder's proof of legal ownership.
20
If we have designated additional transfer agents for your debt
security, they will be named in your prospectus supplement. We may appoint
additional transfer agents or cancel the appointment of any particular transfer
agent. We may also approve a change in the office through which any transfer
agent acts.
If any debt securities are redeemable and we redeem less than all those
debt securities, we may stop the transfer or exchange of those debt securities
during the period beginning 15 days before the day we mail the notice of
redemption and ending on the day of that mailing, in order to freeze the list of
holders to prepare the mailing. We may also refuse to register transfers or
exchanges of any debt securities selected for redemption, except that we will
continue to permit transfers and exchanges of the unredeemed portion of any debt
security that will be partially redeemed.
If a debt security is issued as a global security, only the depository
will be entitled to transfer and exchange the debt security as described in this
section, since it will be the sole holder of the debt security.
PAYMENT MECHANICS
WHO RECEIVES PAYMENT? If interest is due on a debt security on an
interest payment date, we will pay the interest to the person or entity in whose
name the debt security is registered at the close of business on the regular
record date, discussed below, relating to the interest payment date. If interest
is due at maturity but on a day that is not an interest payment date, we will
pay the interest to the person or entity entitled to receive the principal of
the debt security. If principal or another amount besides interest is due on a
debt security at maturity, we will pay the amount to the holder of the debt
security against surrender of the debt security at a proper place of payment,
or, in the case of a global security, in accordance with the applicable policies
of the depository.
PAYMENTS ON GLOBAL SECURITIES. We will make payments on a global
security in accordance with the applicable policies of the depository as in
effect from time to time. Under those policies, we will pay directly to the
depository, or its nominee, and not to any indirect holders who own beneficial
interests in the global security. An indirect holder's right to those payments
will be governed by the rules and practices of the depository and its
participants, as described under "What Is a Global Security?".
PAYMENTS ON NON-GLOBAL SECURITIES. For a debt security in non-global
form, we will pay interest that is due on an interest payment date by check
mailed on the interest payment date to the holder at his or her address shown on
the trustee's records as of the close of business on the regular record date. We
will make all other payments by check, at the paying agent described below,
against surrender of the debt security. We will make all payments by check in
next-day funds; for example, funds that become available on the day after the
check is cashed.
Alternatively, if a non-global security has a face amount of at least
$1,000,000 and the holder asks us to do so, we will pay any amount that becomes
due on the debt security by wire transfer of immediately available funds to an
account at a bank in New York City on the due
21
date. To request wire payment, the holder must give the paying agent appropriate
transfer instructions at least five business days before the requested wire
payment is due. In the case of any interest payment due on an interest payment
date, the instructions must be given by the person who is the holder on the
relevant regular record date. In the case of any other payment, we will make
payment only after the debt security is surrendered to the paying agent. Any
wire instructions, once properly given, will remain in effect unless and until
new instructions are given in the manner described above.
REGULAR RECORD DATES. We will pay interest to the holders listed in the
trustee's records as the owners of the debt securities at the close of business
on a particular day in advance of each interest payment date. We will pay
interest to these holders if they are listed as the owner even if they no longer
own the debt security on the interest payment date. That particular day, usually
about two weeks in advance of the interest payment date, is called the "regular
record date" and will be identified in the prospectus supplement.
PAYMENT WHEN OFFICES ARE CLOSED. If any payment is due on a debt
security on a day that is not a business day, we will make the payment on the
next business day. Payments postponed to the next business day in this situation
will be treated under the indenture as if they were made on the original due
date. A postponement of this kind will not result in a default under any debt
security or the indenture, and no interest will accrue on the postponed amount
from the original due date to the next business day.
PAYING AGENTS. We may appoint one or more financial institutions to act
as our paying agents, at whose designated offices debt securities in non-global
form may be surrendered for payment at their maturity. We call each of those
offices a paying agent. We may add, replace or terminate paying agents from time
to time. We may also choose to act as our own paying agent. Initially, we have
appointed the trustee, at its corporate trust office in New York City, as the
paying agent. We must notify you of changes in the paying agents.
BOOK-ENTRY AND OTHER INDIRECT HOLDERS SHOULD CONSULT THEIR BANKS OR
BROKERS FOR INFORMATION ON HOW THEY WILL RECEIVE PAYMENTS ON THEIR DEBT
SECURITIES.
THE TRUSTEE UNDER THE INDENTURE
SunTrust Bank is the trustee under the indenture. SunTrust is also a
lender in our $300 million revolving credit facility.
The trustee may resign or be removed with respect to one or more series
of indenture securities and a successor trustee may be appointed to act with
respect to these series.
DESCRIPTION OF COMMON STOCK
Our authorized capital stock consists of 100,000,000 shares of common
stock, of which 41,018,637 shares were outstanding on December 17, 2001. Each of
our shares of common stock is entitled to one vote on all matters voted upon by
shareholders. Our shareholders do not have cumulative voting rights. Our issued
and outstanding shares of common stock are fully
22
paid and nonassessable. There are no redemption or sinking fund provisions
applicable to the shares of our common stock, and such shares are not entitled
to any preemptive rights. Since we are incorporated in both Texas and Virginia,
we must comply with the laws of both states when issuing shares of our common
stock.
Holders of our shares of common stock are entitled to receive such
dividends as may be declared from time to time by our board of directors from
our assets legally available for the payment of dividends and, upon our
liquidation, a pro rata share of all of our assets available for distribution to
our shareholders.
Under the provisions of some of our debt agreements, we have agreed to
restrictions on the payment of cash dividends. Under these restrictions, our
cumulative cash dividends paid after December 31, 1988 may not exceed the sum of
our and our Subsidiaries' accumulated consolidated net income for periods after
December 31, 1988, plus approximately $15.0 million. As of September 30, 2001,
approximately $56.7 million was available for the declaration of dividends.
The registrar and transfer agent for our common stock is EquiServe
Trust Company, N.A.
Some provisions of our restated articles of incorporation and bylaws
may be deemed to have an "anti-takeover" effect. The following description of
these provisions is only a summary, and we refer you to our restated articles of
incorporation and bylaws for more information since their terms affect your
rights as a shareholder.
CLASSIFICATION OF THE BOARD. Our board of directors is divided into
three classes, each of which consists, as nearly as may be possible, of
one-third of the total number of directors constituting the entire board. There
are currently 12 directors serving on the board. Each class of directors serves
a three-year term. At each annual meeting of our shareholders, successors to the
class of directors whose term expires at the annual meeting are elected for
three-year terms. Our restated articles of incorporation prohibit cumulative
voting. In general, in the absence of cumulative voting, one or more persons who
hold a majority of our outstanding shares can elect all of the directors who are
subject to election at any meeting of shareholders.
The classification of directors could have the effect of making it more
difficult for shareholders, including those holding a majority of the
outstanding shares, to force an immediate change in the composition of our
board. Two shareholder meetings, instead of one, generally will be required to
effect a change in the control of our board. Our board believes that the longer
time required to elect a majority of a classified board will help to ensure the
continuity and stability of our management and policies since a majority of the
directors at any given time will have had prior experience as our directors.
REMOVAL OF DIRECTORS. Our restated articles of incorporation and bylaws
also provide that our directors may be removed only for cause and upon the
affirmative vote of the holders of at least 75% of the shares then entitled to
vote at an election of directors.
23
FAIR PRICE PROVISIONS. Article VII of our restated articles of
incorporation provides certain "Fair Price Provisions" for our shareholders.
Under Article VII, a merger, consolidation, sale of assets, share exchange,
recapitalization or other similar transaction, between us or a company
controlled by or under common control with us and any individual, corporation or
other entity which owns or controls 10% or more of our voting capital stock,
would be required to satisfy the condition that the aggregate consideration per
share to be received in the transaction for each class of our voting capital
stock be at least equal to the highest per share price, or equivalent price for
any different classes or series of stock, paid by the 10% shareholder in
acquiring any of its holdings of our stock. If a proposed transaction with a 10%
shareholder does not meet this condition, then the transaction must be approved
by the holders of at least 75% of the outstanding shares of voting capital stock
held by our shareholders other than the 10% shareholder unless a majority of the
directors who were members of our board immediately prior to the time the 10%
shareholder involved in the proposed transaction became a 10% shareholder have
either:
o expressly approved in advance the acquisition of the
outstanding shares of our voting capital stock that caused the
10% shareholder to become a 10% shareholder; or
o approved the transaction either in advance of or subsequent to
the 10% shareholder becoming a 10% shareholder.
The provisions of Article VII may not be amended, altered, changed, or
repealed except by the affirmative vote of at least 75% of the votes entitled to
be cast thereon at a meeting of our shareholders duly called for consideration
of such amendment, alteration, change, or repeal. In addition, if there is a 10%
shareholder, such action must also be approved by the affirmative vote of at
least 75% of the outstanding shares of our voting capital stock held by the
shareholders other than the 10% shareholder.
SHAREHOLDER PROPOSALS AND DIRECTOR NOMINATIONS. Our shareholders can
submit shareholder proposals and nominate candidates for the board of directors
if the shareholders follow the advance notice procedures described in our
bylaws.
Shareholder proposals must be submitted to our corporate secretary at
least 60 days, but not more than 85 days, before the annual meeting. The notice
must include a description of the proposal, the shareholder's name and address
and the number of shares held, and all other information which would be required
to be included in a proxy statement filed with the SEC if the shareholder were a
participant in a solicitation subject to the SEC proxy rules. To be included in
our proxy statement for an annual meeting, we must receive the proposal at least
120 days prior to the anniversary of the date we mailed the proxy statement for
the prior year's annual meeting.
To nominate directors, shareholders must submit a written notice to our
corporate secretary at least 60 days, but not more than 85 days, before a
scheduled meeting. The notice must include the name and address of the
shareholder and of the shareholder's nominee, the number of shares held by the
shareholder, a representation that the shareholder is a holder of record of
common stock entitled to vote at the meeting, and that the shareholder intends
to
24
appear in person or by proxy to nominate the persons specified in the notice, a
description of any arrangements between the shareholder and the shareholder's
nominee, information about the shareholder's nominee required by the SEC, and
the written consent of the shareholder's nominee to serve as a director.
Shareholder proposals and director nominations that are late or that do
not include all required information may be rejected. This could prevent
shareholders from bringing certain matters before an annual or special meeting
or making nominations for directors.
SHAREHOLDER RIGHTS PLAN. On November 12, 1997, our board of directors
declared a dividend distribution of one right for each outstanding share of our
common stock to shareholders of record at the close of business on May 10, 1998.
Each right entitles the registered holder to purchase from us one share of our
common stock at a purchase price of $80 per share, subject to adjustment. The
description and terms of the rights are set forth in a rights agreement between
us and EquiServe Trust Company, N.A., as rights agent.
Subject to exceptions specified in the rights agreement, the rights
will separate from our common stock and a distribution date will occur upon the
earlier of:
o ten business days following a public announcement that a
person or group of affiliated or associated persons has
acquired, or obtained the right to acquire, beneficial
ownership of 15% or more of the outstanding shares of our
common stock, other than as a result of repurchases of stock
by us or specified inadvertent actions by institutional or
other shareholders;
o ten business days, or such later date as our board of
directors shall determine, following the commencement of a
tender offer or exchange offer that would result in a person
or group having acquired, or obtained the right to acquire,
beneficial ownership of 15% or more of the outstanding shares
of our common stock; or
o ten business days after our board of directors shall declare
any person to be an adverse person within the meaning of the
rights plan.
The rights expire at 5:00 P.M., Boston, Massachusetts time on May 10,
2008, unless extended prior thereto by our board or earlier if redeemed by us.
The rights will not have any voting rights. The exercise price payable
and the number of shares of our common stock or other securities or property
issuable upon exercise of the rights are subject to adjustment from time to time
to prevent dilution. We issue rights when we issue our common stock until the
rights have separated from the common stock. After the rights have separated
from the common stock, we may issue additional rights if the board of directors
deems such issuance to be necessary or appropriate.
The rights have anti-takeover effects and may cause substantial
dilution to a person or entity that attempts to acquire us on terms not approved
by our board of directors except pursuant to an offer conditioned upon a
substantial number of rights being acquired. The rights should not interfere
with any merger or other business combination approved by our board of directors
25
because, prior to the time that the rights become exercisable or transferable,
we can redeem the rights at $.01 per right.
PLAN OF DISTRIBUTION
We may sell the securities offered by this prospectus and a prospectus
supplement as follows:
o through agents;
o to or through underwriters; or
o directly to other purchasers.
We will identify any underwriters or agents and describe their
compensation in a prospectus supplement.
We, directly or through agents, may sell, and the underwriters may
resell, the offered securities in one or more transactions, including negotiated
transactions. These transactions may be:
o at a fixed public offering price or prices, which may be
changed;
o at market prices prevailing at the time of sale;
o at prices related to the prevailing market prices; or
o at negotiated prices.
In connection with the sale of offered securities, the underwriters or
agents may receive compensation from us or from purchasers of the offered
securities for whom they may act as agents. The underwriters may sell offered
securities to or through dealers, who may also receive compensation from
purchasers of the offered securities for whom they may act as agents.
Compensation may be in the form of discounts, concessions or commissions.
Underwriters, dealers and agents that participate in the distribution of the
offered securities may be underwriters as defined in the Securities Act, and any
discounts or commissions received by them from us and any profit on the resale
of the offered securities by them may be treated as underwriting discounts and
commissions under the Securities Act of 1933.
We will indemnify the underwriters and agents against certain civil
liabilities, including liabilities under the Securities Act of 1933.
Underwriters, dealers and agents or their affiliates may engage in
transactions with us or perform services for us.
If we indicate in the prospectus supplement relating to a particular
series or issue of offered securities, we will authorize underwriters, dealers
or agents to solicit offers by institutions to purchase the offered securities
from us under delayed delivery contracts providing for payment and delivery at a
future date. These contracts will be subject only to those
26
conditions that we specify in the prospectus supplement, and we will specify in
the prospectus supplement the commission payable for solicitation of these
contracts.
LEGAL MATTERS
Gibson, Dunn & Crutcher LLP, Dallas, Texas, and Hunton & Williams,
Richmond, Virginia, have each rendered an opinion with respect to the validity
of the securities being offered by this prospectus. We filed these opinions as
exhibits to the registration statement of which this prospectus is a part.
Shearman & Sterling, New York, New York, will pass upon certain matters related
to the securities being offered by this prospectus for any underwriters, dealers
or agents.
EXPERTS
Ernst & Young LLP, independent auditors, have audited our consolidated
financial statements included in our Annual Report on Form 10-K for the year
ended September 30, 2001, as set forth in their report dated November 2, 2001,
which is incorporated by reference in this prospectus. Our financial statements
are incorporated by reference in reliance on Ernst & Young LLP's report, given
on their authority as experts in accounting and auditing.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and
other information with the SEC under the Securities Exchange Act. You may read
and copy this information at the following locations of the SEC:
Judiciary Plaza, Room 1024 The Woolworth Building Citicorp Center
450 Fifth Street, N.W. Street 233 Broadway 500 West Madison Street
Washington, D.C. 20549 New York, NY 10279 Suite 1400
Chicago, Illinois 60661
You can also obtain copies of this information by mail from the Public
Reference Room of the SEC, 450 Fifth Street, N.W., Room 1024, Washington, D.C.
20549, at prescribed rates. You may obtain information on the operation of the
Public Reference Room by calling the SEC at (800) SEC-0330.
The SEC also maintains an Internet world wide web site that contains
reports, proxy statements and other information about issuers, like us, who file
electronically with the SEC. The address of that site is http://www.sec.gov.
Our common stock is listed on the New York Stock Exchange and you can
inspect reports, proxy statements and other information about us at the offices
of the New York Stock Exchange, Inc., 20 Broad Street, New York, New York 10005.
We have filed with the SEC a registration statement on Form S-3 that
registers the securities we are offering. The registration statement, including
the attached exhibits and
27
schedules, contains additional relevant information about us and the securities
offered. The rules and regulations of the SEC allow us to omit certain
information included in the registration statement from this prospectus.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC allows us to "incorporate by reference" information into this
prospectus. This means that we can disclose important information to you by
referring you to another document filed separately with the SEC. The information
that is subsequently filed with the SEC automatically updates and supercedes the
previously filed information. The information incorporated by reference is
considered to be part of this prospectus, except for any information that is
superseded by information that is included directly in this prospectus or
subsequently filed document.
This prospectus incorporates by reference our Annual Report on Form 10-K
for the fiscal year ended September 30, 2001, which we have previously filed
with the SEC and which is not included in or delivered with this document. It
contains important information about our company and its financial condition.
We also incorporate by reference any future filings with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
between the date of this prospectus and the date of the closing of each
offering. These documents include periodic reports, such as Annual Reports on
Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K (other
than information furnished under Item 9), as well as proxy statements.
You can obtain any of the documents incorporated by reference in this
document from us without charge, excluding any exhibits to those documents
unless the exhibit is specifically incorporated by reference in this prospectus.
You can obtain documents incorporated by reference in this prospectus by
requesting them in writing or by telephone from us at the following address:
ATMOS ENERGY CORPORATION
1800 Three Lincoln Centre
5430 LBJ Freeway
Dallas, Texas 75240
Attention: Louis P. Gregory
(972) 934-9227
28
================================================================================
$600,000,000
ATMOS ENERGY CORPORATION
DEBT SECURITIES
AND
COMMON STOCK
--------------
PROSPECTUS
------------ --- , -----
--------------
================================================================================
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.*
Securities and Exchange Commission registration fee ............. $ 143,400
Blue Sky fees, including counsel fees ........................... 2,500
Printing expenses ............................................... 15,000
Trustee's fees and expenses ..................................... 5,000
Rating agency fees .............................................. 225,000
State filing fees ............................................... 18,000
Accounting fees and expenses .................................... 30,000
Legal fees and expenses ......................................... 50,000
Miscellaneous expenses .......................................... 20,000
------------
Total .................................................. $ 508,900
============
----------
*All fees and expenses will be paid by us. All fees and expenses other
than the SEC filing fees are estimated.
ITEM 15. 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 Restated Articles of Incorporation, as amended, and Article IX of our
Amended and Restated 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 to us, or received improper personal
benefit from us, whether or not involving action in his official capacity, then
indemnification will not be made.
II-1
Article X of our Restated Articles of Incorporation, as amended,
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:
o for any breach of duty of loyalty to us or our shareholders;
o for an act or omission not in good faith or which involves
intentional misconduct or a knowing violation of law;
o 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;
o for an act or omission for which the liability of a director
is expressly provided by statute; or
o for an act related to an unlawful stock repurchase or payment
of a dividend.
In addition, Article IX of our Restated Articles of Incorporation, as amended,
and Article IX of our Amended and Restated 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.
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers or persons controlling us
pursuant to the foregoing provisions, we have been informed that in the opinion
of the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is therefore unenforceable.
II-2
ITEM 16. EXHIBITS.
EXHIBIT
NUMBER EXHIBITS
-------- -----------------------------------------------------------
1.1** Form of Underwriting Agreement.
4.1 Indenture between the registrant and SunTrust Bank, as
trustee, dated May 22, 2001 (incorporated by reference to
Exhibit 99.3 to Current Report on Form 8-K dated May 22,
2001 (File No. 1-10042)).
4.2 Form of Debt Security (see Exhibit 4.1).
4.3(a) Note Purchase Agreement, dated as of December 21, 1987, by
and between the registrant and John Hancock Mutual Life
Insurance Company (incorporated by reference to Exhibit
10(c) to Current Report on Form 8-K filed January 7, 1988
(File No. 0-11249)).
Note Purchase Agreement, dated as of December 21, 1987, by
and between the registrant and John Hancock Charitable
Trust I (Agreement is identical to Hancock Agreement listed
above except as to the parties thereto).
Note Purchase Agreement dated as of December 21, 1987, by
and between the registrant and Mellon Bank, N.A., Trustee
under Master Trust Agreement of AT&T Corporation, dated
January 1, 1984, for Employee Pension Plans -- AT&T -- John
Hancock -- Private Placement (Agreement is identical to
Hancock Agreement listed above except as to the parties
thereto).
4.3(b) Amendment to Note Purchase Agreement, dated October 11,
1989, by and between the registrant and John Hancock Mutual
Life Insurance Company revising Note Purchase Agreement
dated December 21, 1987 (incorporated by reference to
Exhibit 10(b)(ii) to Annual Report on Form 10-K for fiscal
year ended September 30, 1989 (File No. 1-10042)).
Amendment to Note Purchase Agreement, dated October 11,
1989, by and between the registrant and John Hancock
Charitable Trust I revising Note Purchase Agreement dated
December 21, 1987 (Amendment is identical to Hancock
amendment listed above except as to the parties thereto).
Amendment to Note Purchase Agreement, dated October 11,
1989, by and between the registrant and Mellon Bank, N.A.,
Trustee under Master Trust Agreement of AT&T Corporation,
dated January 1, 1984, for Employee Pension Plans -- AT&T
-- John Hancock -- Private Placement revising Note Purchase
Agreement dated December 21, 1987 (Amendment is identical
to Hancock amendment listed above except as to the parties
thereto).
4.3(c) Amendment to Note Purchase Agreement dated November 12,
1991, by and between the registrant and John Hancock Mutual
Life Insurance Company revising Note Purchase Agreement
dated December 21, 1987 (incorporated by reference to
Exhibit 10(b)(iii) to Annual Report on Form 10-K for fiscal
year ended September 30, 1991 (File No. 1-10042)).
II-3
Amendment to Note Purchase Agreement, dated November 12,
1991, by and between the registrant and John Hancock
Charitable Trust I revising Note Purchase Agreement dated
December 21, 1987 (Amendment is identical to Hancock
amendment listed above except as to the parties thereto).
Amendment to Note Purchase Agreement, dated November 12,
1991, by and between the registrant and Mellon Bank, N.A.,
Trustee under Master Trust Agreement of AT&T Corporation,
dated January 1, 1984, for Employee Pension Plans -- AT&T
-- John Hancock -- Private Placement revising Note Purchase
Agreement dated December 21, 1987 (Amendment is identical
to Hancock amendment above except as to the parties
thereto).
4.3(d) Amendment to Note Purchase Agreement, dated December 22,
1993, by and between the registrant and John Hancock Mutual
Life Insurance Company revising Note Purchase Agreement
dated December 21, 1987 (incorporated by reference to
Exhibit 4.3(d) to Registration Statement on Form S-3 filed
April 20, 1998 (File No. 333-50477)).
Amendment to Note Purchase Agreement, dated December 22,
1993, by and between the registrant and Mellon Bank, N.A.,
Trustee under Master Trust Agreement of AT&T Corporation,
dated January 1, 1984, for Employee Pension Plans -- AT&T
-- John Hancock -- Private Placement revising Note Purchase
Agreement dated December 21, 1987 (Amendment is identical
to Hancock amendment listed above except as to the parties
thereto and the amounts thereof).
4.3(e) Amendment to Note Purchase Agreement, dated December 20,
1994, by and between the registrant and John Hancock Mutual
Life Insurance Company revising Note Purchase Agreement
dated December 21, 1987 (incorporated by reference to
Exhibit 4.3(e) to Registration Statement on Form S-3 filed
April 20, 1998 (File No. 333-50477)).
Amendment to Note Purchase Agreement, dated December 20,
1994, by and between the registrant and Mellon Bank, N.A.,
Trustee under Master Trust Agreement of AT&T Corporation,
dated January 1, 1984, for Employee Pension Plans -- AT&T
-- John Hancock -- Private Placement revising Note Purchase
Agreement dated December 21, 1987 (Amendment is identical
to Hancock amendment listed above).
4.3(f) Amendment to Note Purchase Agreement, dated July 29, 1997,
by and between the registrant and John Hancock Mutual Life
Insurance Company revising Note Purchase Agreement dated
December 21, 1987 (incorporated by reference to Exhibit
4.3(f) to Registration Statement on Form S-3 filed April
20, 1998 (File No. 333-50477)).
II-4
Amendment to Note Purchase Agreement, dated July 29, 1997,
by and between the registrant and Mellon Bank, N.A.,
Trustee under Master Trust Agreement of AT&T Corporation,
dated January 1, 1984, for Employee Pension Plans -- AT&T
-- John Hancock -- Private Placement revising Note Purchase
Agreement dated December 21, 1987 (Amendment is identical
to Hancock Amendment listed above except as to the parties
thereto and the amounts thereof).
4.4(a) Note Purchase Agreement, dated as of October 11, 1989, by
and between the registrant and John Hancock Mutual Life
Insurance Company (incorporated by reference to Exhibit
10(c) to Annual Report on Form 10-K for fiscal year ended
September 30, 1989 (File No. 1-10042)).
4.4(b) Amendment to Note Purchase Agreement, dated as of November
12, 1991, by and between the registrant and John Hancock
Mutual Life Insurance Company revising Note Purchase
Agreement dated October 11, 1989 (incorporated by reference
to Exhibit 10(c)(ii) to Annual Report on Form 10-K for
fiscal year ended September 30, 1991 (File No. 1-10042)).
4.4(c) Amendment to Note Purchase Agreement, dated December 22,
1993, by and between the registrant and John Hancock Mutual
Life Insurance Company revising Note Purchase Agreement
dated October 11, 1989 (incorporated by reference to
Exhibit 4.4(c) to Registration Statement on Form S-3 filed
April 20, 1998 (File No. 333-50477)).
4.4(d) Amendment to Note Purchase Agreement, dated December 20,
1994, by and between the registrant and John Hancock Mutual
Life Insurance Company revising Note Purchase Agreement
dated October 11, 1989 (incorporated by reference to
Exhibit 4.4(d) to Registration Statement on Form S-3 filed
April 20, 1998 (File No. 333-50477)).
4.4(e) Amendment to Note Purchase Agreement, dated July 29, 1997,
by and between the registrant and John Hancock Mutual Life
Insurance Company revising Note Purchase Agreement dated
October 11, 1989 (incorporated by reference to Exhibit
4.4(e) to Registration Statement on Form S-3 filed April
20, 1998 (File No. 333-50477)).
4.5(a) Note Purchase Agreement, dated as of August 29, 1991, by
and between the registrant and The Variable Annuity Life
Insurance Company (incorporated by reference to Exhibit
10(f)(i) to Annual Report on Form 10-K for fiscal year
ended September 30, 1991 (File No. 1-10042)).
4.5(b) Amendment to Note Purchase Agreement, dated November 26,
1991, by and between the registrant and The Variable
Annuity Life Insurance Company revising Note Purchase
Agreement dated August 29, 1991 (incorporated by reference
to Exhibit 10(f)(ii) to Annual Report on Form 10-K for
fiscal year ended September 30, 1991 (File No. 1-10042)).
II-5
4.5(c) Amendment to Note Purchase Agreement, dated December 22,
1993, by and between the registrant and The Variable
Annuity Life Insurance Company revising Note Purchase
Agreement dated August 29, 1991 (incorporated by reference
to Exhibit 4.5(c) to Registration Statement on Form S-3
filed April 20, 1998 (File No. 333-50477)).
4.5(d) Amendment to Note Purchase Agreement, dated July 29, 1997,
by and between the registrant and The Variable Annuity Life
Insurance Company revising Note Purchase Agreement dated
August 29, 1991 (incorporated by reference to Exhibit
4.5(d) to Registration Statement on Form S-3 filed April
20, 1998 (File No. 333-50477)).
4.6(a) Note Purchase Agreement, dated as of August 31, 1992, by
and between the registrant and The Variable Annuity Life
Insurance Company (incorporated by reference to Exhibit
10(f) to Annual Report on Form 10-K for fiscal year ended
September 30, 1992 (File No. 1-10042)).
4.6(b) Amendment to Note Purchase Agreement, dated December 22,
1993, by and between the registrant and the Variable
Annuity Life Insurance Company revising Note Purchase
Agreement dated August 31, 1992 (incorporated by reference
to Exhibit 4.6(b) to Registration Statement on Form S-3
filed April 20, 1998 (File No. 333-50477)).
4.6(c) Amendment to Note Purchase Agreement, dated July 29, 1997,
by and between the registrant and The Variable Annuity Life
Insurance Company revising Note Purchase Agreement dated
August 31, 1992 (incorporated by reference to Exhibit
4.6(c) to Registration Statement on Form S-3 filed April
20, 1998 (File No. 333-50477)).
4.7(a) Note Purchase Agreement, dated November 14, 1994, by and
among the registrant and New York Life Insurance Company,
New York Life Insurance and Annuity Corporation, The
Variable Annuity Life Insurance Company, American General
Life Insurance Company, and Merit Life Insurance Company
(incorporated by reference to Exhibit 10.1 to Quarterly
Report on Form 10-Q for quarter ended December 31, 1994
(File No. 1-10042)).
4.7(b) Amendment to Note Purchase Agreement, dated July 29, 1997,
by and among the registrant and New York Life Insurance
Company, New York Life Insurance and Annuity Corporation,
The Variable Annuity Life Insurance Company, American
General Life Insurance Company and Merit Life Insurance
Company revising Note Purchase Agreement dated November 14,
1994 (incorporated by reference to Exhibit 4.7(b) to
Registration Statement on Form S-3 filed April 20, 1998
(File No. 333-50477)).
4.8(a) Indenture of Mortgage, dated as of July 15, 1959, from
United Cities Gas Company to First Trust of Illinois,
National Association, and M.J. Kruger, as Trustees, as
amended and supplemented through December 1, 1992 (the
Indenture of Mortgage through the 20th Supplemental
Indenture) (incorporated by reference to Exhibit 4.05 to
Registration Statement of United Cities Gas Company on Form
S-3 (File No. 33-56983)).
II-6
4.8(b) Twenty-First Supplemental Indenture dated as of February 5,
1997 by and among United Cities Gas Company and Bank of
America Illinois and First Trust National Association and
Russell C. Bergman supplementing Indenture of Mortgage
dated as of July 15, 1959 (incorporated by reference to
Exhibit 10.7(a) to Annual Report on Form 10-K for the
fiscal year ended September 30, 1997 (File No. 1-10042)).
4.8(c) Twenty-Second Supplemental Indenture dated as of July 29,
1997 by and among the registrant and First Trust National
Association and Russell C. Bergman supplementing Indenture
of Mortgage dated as of July 15, 1959 (incorporated by
reference to Exhibit 10.7(b) to Annual Report on Form 10-K
for the fiscal year ended September 30, 1997 (File No.
1-10042)).
4.9(a) Form of Indenture between United Cities Gas Company and
First Trust of Illinois, National Association, as Trustee
dated as of November 15, 1995 (incorporated by reference to
Exhibit 4.08 to Registration Statement of United Cities Gas
Company on Form S-3 (File No. 33-56983)).
4.9(b) First Supplemental Indenture between the registrant and
First Trust of Illinois, National Association, as Trustee
dated as of July 29, 1997 (incorporated by reference to
Exhibit 10.8(a) to Annual Report on Form 10-K for the
fiscal year ended September 30, 1997 (File No. 1-10042)).
4.10(a) Seventh Supplemental Indenture, dated as of October 1, 1983
between Greeley Gas Company ("the Greeley Gas Division")
and the Central Bank of Denver, N.A. ("Central Bank")
(incorporated by reference to Exhibit 10.1 to Quarterly
Report on Form 10-Q for quarter ended June 30, 1994 (File
No. 1-10042)).
4.10(b) Ninth Supplemental Indenture, dated as of April 1, 1991,
between the Greeley Gas Division and Central Bank
(incorporated by reference to Exhibit 10.2 to Quarterly
Report on Form 10-Q for quarter ended June 30, 1994 (File
No. 1-10042)).
4.10(c) Bond Purchase Agreement, dated as of April 1, 1991, between
the Greeley Gas Division and Central Bank (incorporated by
reference to Exhibit 10.3 to Quarterly Report on Form 10-Q
for quarter ended June 30, 1994 (File No. 1-10042)).
4.10(d) Tenth Supplemental Indenture, dated as of December 1, 1993,
between the registrant and Colorado National Bank, formerly
Central Bank (incorporated by reference to Exhibit 10.4 to
Quarterly Report on Form 10-Q for quarter ended June 30,
1994 (File No. 1-10042)).
4.11(a) Restated Articles of Incorporation, as amended, of the
registrant (incorporated by reference to Exhibit 3.1 to
Annual Report on Form 10-K for fiscal year ended September
30, 1997) (File No. 1-10042)).
4.11(b) Articles of Amendment to the Restated Articles of
Incorporation, as amended, of the registrant (Texas)
(incorporated by reference to Exhibit 3a to Quarterly
Report on Form 10-Q for quarter ended March 31, 1999 (File
No. 1-10042)).
II-7
4.11(c) Articles of Amendment to the Restated Articles of
Incorporation, as amended, of the registrant (Virginia)
(incorporated by reference to Exhibit 3b to Quarterly
Report on Form 10-Q for quarter ended March 31, 1999 (File
No. 1-10042)).
4.12(a) Amended and Restated Bylaws of the registrant (incorporated
by reference to Exhibit 3.2 to Annual Report on Form 10-K
for fiscal year ended September 30, 1997 (File No.
1-10042)).
4.12(b) Amendment No. 1 to Amended and Restated Bylaws of the
registrant (incorporated by reference to Exhibit 3.1 to
Quarterly Report on Form 10-Q for fiscal quarter ended
March 31, 2001 (File No. 1-10042)).
4.13 Specimen Common Stock Certificate (incorporated by
reference to Exhibit 4(b) to Annual Report on Form 10-K for
the fiscal year ended September 30, 1988 (File No.
1-10042)).
4.14(a) Rights Agreement, dated as of November 12, 1997, between
the registrant and EquiServe Trust Company, N.A., as Rights
Agent (incorporated by reference to Exhibit 4.1 to Current
Report on Form 8-K dated November 12, 1997 (File No.
1-10042)).
4.14(b) First Amendment to Rights Agreement, dated as of August 11,
1999, between the registrant and EquiServe Trust Company,
N.A., as Rights Agent (incorporated by reference to Exhibit
2 to Registration Statement on Form 8-A, Amendment No. 1,
dated August 12, 1999 (File No. 1-10042)).
5.1* Opinion of Gibson, Dunn & Crutcher LLP, Dallas, Texas, as
to the validity of the securities being registered.
5.2* Opinion of Hunton & Williams, Richmond, Virginia, as to the
validity of the securities being registered.
12.1 Statement of computation of ratio of earnings to fixed
charges (incorporated by reference to Exhibit 12 to Annual
Report on Form 10-K for fiscal year ended September 30,
2001 (File No. 1-10042)).
23.1 Consent of Gibson, Dunn & Crutcher LLP, Dallas, Texas (see
Exhibit 5.1).
23.2 Consent of Hunton & Williams, Richmond, Virginia (see
Exhibit 5.2).
23.3* Consent of Ernst & Young LLP.
24.1 Powers of Attorney (see signature page).
25.1 Statement of eligibility of SunTrust Bank on Form T-1
(incorporated by reference to Exhibit 25.1 to Registration
Statement on Form S-3/A filed November 6, 2000 (File No.
333-93705)).
----------
* Filed herewith.
** To be filed by amendment hereto or pursuant to a Current Report on Form 8-K
to be incorporated herein by reference.
II-8
ITEM 17. UNDERTAKINGS.
(a) 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 section 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 Act of 1934) that is incorporated by reference in the 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.
(b) 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 described in Item
15, or otherwise, the registrant has 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.
(c) 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
the 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 the registration
statement. Notwithstanding the foregoing,
any increase or decrease in volume of
securities offered (if the total dollar
value of securities offered would not exceed
that which was registered) and any deviation
from the low or high and of the estimated
maximum offering range may be reflected in
the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and
price represent no more than a 20% change in
the maximum aggregate offering price set
forth in the "Calculation of Registration
Fee" table in the effective registration
statement; and
II-9
(iii) To include any material information with
respect to the plan of distribution not
previously disclosed in the registration
statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (c)(1)(i) and (c)(1)(ii) of this section do
not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or
furnished to the Commission 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 purposes 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.
(d) The undersigned registrant hereby undertakes to file an application
for the purpose of determining the eligibility of the trustee to act under
subsection (a) of section 310 of the Trust Indenture Act in accordance with the
rules and regulations prescribed by the Commission under section 305(b)(2) of
the Trust Indenture Act.
II-10
SIGNATURES AND POWERS OF ATTORNEY
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-3 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 December 20, 2001.
ATMOS ENERGY CORPORATION
By: /s/ ROBERT W. BEST
-----------------------------------
Robert W. Best, Chairman,
President and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, THAT EACH PERSON WHOSE SIGNATURE
APPEARS BELOW HEREBY CONSTITUTES AND APPOINTS ROBERT W. BEST 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 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 Chairman, President and Chief December 20, 2001
------------------------------------ Executive Officer (Principal
Robert W. Best Executive Officer)
/s/ JOHN P. REDDY Senior Vice President and Chief December 20, 2001
------------------------------------ Financial Officer
John P. Reddy
/s/ F. E. MEISENHEIMER Vice President and Controller December 20, 2001
------------------------------------ (Principal Accounting Officer)
F. E. Meisenheimer
II-11
/s/ TRAVIS W. BAIN II Director December 20, 2001
------------------------------------
Travis W. Bain II
/s/ DAN BUSBEE Director December 20, 2001
------------------------------------
Dan Busbee
/s/ RICHARD W. CARDIN Director December 20, 2001
------------------------------------
Richard W. Cardin
/s/ THOMAS J. GARLAND Director December 20, 2001
------------------------------------
Thomas J. Garland
/s/ RICHARD K. GORDON Director December 20, 2001
------------------------------------
Richard K. Gordon
/s/ GENE C. KOONCE Director December 20, 2001
------------------------------------
Gene C. Koonce
/s/ THOMAS C. MEREDITH Director December 20, 2001
------------------------------------
Thomas C. Meredith
/s/ PHILLIP E. NICHOL Director December 20, 2001
------------------------------------
Phillip E. Nichol
/s/ CARL S. QUINN Director December 20, 2001
------------------------------------
Carl S. Quinn
/s/ CHARLES K. VAUGHAN Director December 20, 2001
------------------------------------
Charles K. Vaughan
/s/ RICHARD WARE II Director December 20, 2001
------------------------------------
Richard Ware II
II-12
EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
-------- -----------
1.1** Form of Underwriting Agreement.
4.1 Indenture between the registrant and SunTrust Bank, as
trustee, dated May 22, 2001 (incorporated by reference to
Exhibit 99.3 to Current Report on Form 8-K dated May 22,
2001 (File No. 1-10042)).
4.2 Form of Debt Security (see Exhibit 4.1).
4.3(a) Note Purchase Agreement, dated as of December 21, 1987, by
and between the registrant and John Hancock Mutual Life
Insurance Company (incorporated by reference to Exhibit
10(c) to Current Report on Form 8-K filed January 7, 1988
(File No. 0-11249)).
Note Purchase Agreement, dated as of December 21, 1987, by
and between the registrant and John Hancock Charitable
Trust I (Agreement is identical to Hancock Agreement listed
above except as to the parties thereto).
Note Purchase Agreement dated as of December 21, 1987, by
and between the registrant and Mellon Bank, N.A., Trustee
under Master Trust Agreement of AT&T Corporation, dated
January 1, 1984, for Employee Pension Plans -- AT&T -- John
Hancock -- Private Placement (Agreement is identical to
Hancock Agreement listed above except as to the parties
thereto).
4.3(b) Amendment to Note Purchase Agreement, dated October 11,
1989, by and between the registrant and John Hancock Mutual
Life Insurance Company revising Note Purchase Agreement
dated December 21, 1987 (incorporated by reference to
Exhibit 10(b)(ii) to Annual Report on Form 10-K for fiscal
year ended September 30, 1989 (File No. 1-10042)).
Amendment to Note Purchase Agreement, dated October 11,
1989, by and between the registrant and John Hancock
Charitable Trust I revising Note Purchase Agreement dated
December 21, 1987 (Amendment is identical to Hancock
amendment listed above except as to the parties thereto).
Amendment to Note Purchase Agreement, dated October 11,
1989, by and between the registrant and Mellon Bank, N.A.,
Trustee under Master Trust Agreement of AT&T Corporation,
dated January 1, 1984, for Employee Pension Plans -- AT&T
-- John Hancock -- Private Placement revising Note Purchase
Agreement dated December 21, 1987 (Amendment is identical
to Hancock amendment listed above except as to the parties
thereto).
4.3(c) Amendment to Note Purchase Agreement dated November 12,
1991, by and between the registrant and John Hancock Mutual
Life Insurance Company revising Note Purchase Agreement
dated December 21, 1987 (incorporated by reference to
Exhibit 10(b)(iii) to Annual Report on Form 10-K for fiscal
year ended September 30, 1991 (File No. 1-10042)).
Amendment to Note Purchase Agreement, dated November 12,
1991, by and between the registrant and John Hancock
Charitable Trust I revising Note Purchase Agreement dated
December 21, 1987 (Amendment is identical to Hancock
amendment listed above except as to the parties thereto).
Amendment to Note Purchase Agreement, dated November 12,
1991, by and between the registrant and Mellon Bank, N.A.,
Trustee under Master Trust Agreement of AT&T Corporation,
dated January 1, 1984, for Employee Pension Plans -- AT&T
-- John Hancock -- Private Placement revising Note Purchase
Agreement dated December 21, 1987 (Amendment is identical
to Hancock amendment above except as to the parties
thereto).
4.3(d) Amendment to Note Purchase Agreement, dated December 22,
1993, by and between the registrant and John Hancock Mutual
Life Insurance Company revising Note Purchase Agreement
dated December 21, 1987 (incorporated by reference to
Exhibit 4.3(d) to Registration Statement on Form S-3 filed
April 20, 1998 (File No. 333-50477)).
Amendment to Note Purchase Agreement, dated December 22,
1993, by and between the registrant and Mellon Bank, N.A.,
Trustee under Master Trust Agreement of AT&T Corporation,
dated January 1, 1984, for Employee Pension Plans -- AT&T
-- John Hancock -- Private Placement revising Note Purchase
Agreement dated December 21, 1987 (Amendment is identical
to Hancock amendment listed above except as to the parties
thereto and the amounts thereof).
4.3(e) Amendment to Note Purchase Agreement, dated December 20,
1994, by and between the registrant and John Hancock Mutual
Life Insurance Company revising Note Purchase Agreement
dated December 21, 1987 (incorporated by reference to
Exhibit 4.3(e) to Registration Statement on Form S-3 filed
April 20, 1998 (File No. 333-50477)).
Amendment to Note Purchase Agreement, dated December 20,
1994, by and between the registrant and Mellon Bank, N.A.,
Trustee under Master Trust Agreement of AT&T Corporation,
dated January 1, 1984, for Employee Pension Plans -- AT&T
-- John Hancock -- Private Placement revising Note Purchase
Agreement dated December 21, 1987 (Amendment is identical
to Hancock amendment listed above).
4.3(f) Amendment to Note Purchase Agreement, dated July 29, 1997,
by and between the registrant and John Hancock Mutual Life
Insurance Company revising Note Purchase Agreement dated
December 21, 1987 (incorporated by reference to Exhibit
4.3(f) to Registration Statement on Form S-3 filed April
20, 1998 (File No. 333-50477)).
Amendment to Note Purchase Agreement, dated July 29, 1997,
by and between the registrant and Mellon Bank, N.A.,
Trustee under Master Trust Agreement of AT&T Corporation,
dated January 1, 1984, for Employee Pension Plans -- AT&T
-- John Hancock -- Private Placement revising Note Purchase
Agreement dated December 21, 1987 (Amendment is identical
to Hancock Amendment listed above except as to the parties
thereto and the amounts thereof).
4.4(a) Note Purchase Agreement, dated as of October 11, 1989, by
and between the registrant and John Hancock Mutual Life
Insurance Company (incorporated by reference to Exhibit
10(c) to Annual Report on Form 10-K for fiscal year ended
September 30, 1989 (File No. 1-10042)).
4.4(b) Amendment to Note Purchase Agreement, dated as of November
12, 1991, by and between the registrant and John Hancock
Mutual Life Insurance Company revising Note Purchase
Agreement dated October 11, 1989 (incorporated by reference
to Exhibit 10(c)(ii) to Annual Report on Form 10-K for
fiscal year ended September 30, 1991 (File No. 1-10042)).
4.4(c) Amendment to Note Purchase Agreement, dated December 22,
1993, by and between the registrant and John Hancock Mutual
Life Insurance Company revising Note Purchase Agreement
dated October 11, 1989 (incorporated by reference to
Exhibit 4.4(c) to Registration Statement on Form S-3 filed
April 20, 1998 (File No. 333-50477)).
4.4(d) Amendment to Note Purchase Agreement, dated December 20,
1994, by and between the registrant and John Hancock Mutual
Life Insurance Company revising Note Purchase Agreement
dated October 11, 1989 (incorporated by reference to
Exhibit 4.4(d) to Registration Statement on Form S-3 filed
April 20, 1998 (File No. 333-50477)).
4.4(e) Amendment to Note Purchase Agreement, dated July 29, 1997,
by and between the registrant and John Hancock Mutual Life
Insurance Company revising Note Purchase Agreement dated
October 11, 1989 (incorporated by reference to Exhibit
4.4(e) to Registration Statement on Form S-3 filed April
20, 1998 (File No. 333-50477)).
4.5(a) Note Purchase Agreement, dated as of August 29, 1991, by
and between the registrant and The Variable Annuity Life
Insurance Company (incorporated by reference to Exhibit
10(f)(i) to Annual Report on Form 10-K for fiscal year
ended September 30, 1991 (File No. 1-10042)).
4.5(b) Amendment to Note Purchase Agreement, dated November 26,
1991, by and between the registrant and The Variable
Annuity Life Insurance Company revising Note Purchase
Agreement dated August 29, 1991 (incorporated by reference
to Exhibit 10(f)(ii) to Annual Report on Form 10-K for
fiscal year ended September 30, 1991 (File No. 1-10042)).
4.5(c) Amendment to Note Purchase Agreement, dated December 22,
1993, by and between the registrant and The Variable
Annuity Life Insurance Company revising Note Purchase
Agreement dated August 29, 1991 (incorporated by reference
to Exhibit 4.5(c) to Registration Statement on Form S-3
filed April 20, 1998 (File No. 333-50477)).
4.5(d) Amendment to Note Purchase Agreement, dated July 29, 1997,
by and between the registrant and The Variable Annuity Life
Insurance Company revising Note Purchase Agreement dated
August 29, 1991 (incorporated by reference to Exhibit
4.5(d) to Registration Statement on Form S-3 filed April
20, 1998 (File No. 333-50477)).
4.6(a) Note Purchase Agreement, dated as of August 31, 1992, by
and between the registrant and The Variable Annuity Life
Insurance Company (incorporated by reference to Exhibit
10(f) to Annual Report on Form 10-K for fiscal year ended
September 30, 1992 (File No. 1-10042)).
4.6(b) Amendment to Note Purchase Agreement, dated December 22,
1993, by and between the registrant and the Variable
Annuity Life Insurance Company revising Note Purchase
Agreement dated August 31, 1992 (incorporated by reference
to Exhibit 4.6(b) to Registration Statement on Form S-3
filed April 20, 1998 (File No. 333-50477)).
4.6(c) Amendment to Note Purchase Agreement, dated July 29, 1997,
by and between the registrant and The Variable Annuity Life
Insurance Company revising Note Purchase Agreement dated
August 31, 1992 (incorporated by reference to Exhibit
4.6(c) to Registration Statement on Form S-3 filed April
20, 1998 (File No. 333-50477)).
4.7(a) Note Purchase Agreement, dated November 14, 1994, by and
among the registrant and New York Life Insurance Company,
New York Life Insurance and Annuity Corporation, The
Variable Annuity Life Insurance Company, American General
Life Insurance Company, and Merit Life Insurance Company
(incorporated by reference to Exhibit 10.1 to Quarterly
Report on Form 10-Q for quarter ended December 31, 1994
(File No. 1-10042)).
4.7(b) Amendment to Note Purchase Agreement, dated July 29, 1997,
by and among the registrant and New York Life Insurance
Company, New York Life Insurance and Annuity Corporation,
The Variable Annuity Life Insurance Company, American
General Life Insurance Company and Merit Life Insurance
Company revising Note Purchase Agreement dated November 14,
1994 (incorporated by reference to Exhibit 4.7(b) to
Registration Statement on Form S-3 filed April 20, 1998
(File No. 333-50477)).
4.8(a) Indenture of Mortgage, dated as of July 15, 1959, from
United Cities Gas Company to First Trust of Illinois,
National Association, and M.J. Kruger, as Trustees, as
amended and supplemented through December 1, 1992 (the
Indenture of Mortgage through the 20th Supplemental
Indenture) (incorporated by reference to Exhibit 4.05 to
Registration Statement of United Cities Gas Company on Form
S-3 (File No. 33-56983)).
4.8(b) Twenty-First Supplemental Indenture dated as of February 5,
1997 by and among United Cities Gas Company and Bank of
America Illinois and First Trust National Association and
Russell C. Bergman supplementing Indenture of Mortgage
dated as of July 15, 1959 (incorporated by reference to
Exhibit 10.7(a) to Annual Report on Form 10-K for the
fiscal year ended September 30, 1997 (File No. 1-10042)).
4.8(c) Twenty-Second Supplemental Indenture dated as of July 29,
1997 by and among the registrant and First Trust National
Association and Russell C. Bergman supplementing Indenture
of Mortgage dated as of July 15, 1959 (incorporated by
reference to Exhibit 10.7(b) to Annual Report on Form 10-K
for the fiscal year ended September 30, 1997 (File No.
1-10042)).
4.9(a) Form of Indenture between United Cities Gas Company and
First Trust of Illinois, National Association, as Trustee
dated as of November 15, 1995 (incorporated by reference to
Exhibit 4.08 to Registration Statement of United Cities Gas
Company on Form S-3 (File No. 33-56983)).
4.9(b) First Supplemental Indenture between the registrant and
First Trust of Illinois, National Association, as Trustee
dated as of July 29, 1997 (incorporated by reference to
Exhibit 10.8(a) to Annual Report on Form 10-K for the
fiscal year ended September 30, 1997 (File No. 1-10042)).
4.10(a) Seventh Supplemental Indenture, dated as of October 1, 1983
between Greeley Gas Company ("the Greeley Gas Division")
and the Central Bank of Denver, N.A. ("Central Bank")
(incorporated by reference to Exhibit 10.1 to Quarterly
Report on Form 10-Q for quarter ended June 30, 1994 (File
No. 1-10042)).
4.10(b) Ninth Supplemental Indenture, dated as of April 1, 1991,
between the Greeley Gas Division and Central Bank
(incorporated by reference to Exhibit 10.2 to Quarterly
Report on Form 10-Q for quarter ended June 30, 1994 (File
No. 1-10042)).
4.10(c) Bond Purchase Agreement, dated as of April 1, 1991, between
the Greeley Gas Division and Central Bank (incorporated by
reference to Exhibit 10.3 to Quarterly Report on Form 10-Q
for quarter ended June 30, 1994 (File No. 1-10042)).
4.10(d) Tenth Supplemental Indenture, dated as of December 1, 1993,
between the registrant and Colorado National Bank, formerly
Central Bank (incorporated by reference to Exhibit 10.4 to
Quarterly Report on Form 10-Q for quarter ended June 30,
1994 (File No. 1-10042)).
4.11(a) Restated Articles of Incorporation, as amended, of the
registrant (incorporated by reference to Exhibit 3.1 to
Annual Report on Form 10-K for fiscal year ended September
30, 1997) (File No. 1-10042)).
4.11(b) Articles of Amendment to the Restated Articles of
Incorporation, as amended, of the registrant (Texas)
(incorporated by reference to Exhibit 3a to Quarterly
Report on Form 10-Q for quarter ended March 31, 1999 (File
No. 1-10042)).
4.11(c) Articles of Amendment to the Restated Articles of
Incorporation, as amended, of the registrant (Virginia)
(incorporated by reference to Exhibit 3b to Quarterly
Report on Form 10-Q for quarter ended March 31, 1999 (File
No. 1-10042)).
4.12(a) Amended and Restated Bylaws of the registrant (incorporated
by reference to Exhibit 3.2 to Annual Report on Form 10-K
for fiscal year ended September 30, 1997 (File No.
1-10042)).
4.12(b) Amendment No. 1 to Amended and Restated Bylaws of the
registrant (incorporated by reference to Exhibit 3.1 to
Quarterly Report on Form 10-Q for fiscal quarter ended
March 31, 2001 (File No. 1-10042)).
4.13 Specimen Common Stock Certificate (incorporated by
reference to Exhibit 4(b) to Annual Report on Form 10-K for
the fiscal year ended September 30, 1988 (File No.
1-10042)).
4.14(a) Rights Agreement, dated as of November 12, 1997, between
the registrant and EquiServe Trust Company, N.A., as Rights
Agent (incorporated by reference to Exhibit 4.1 to Current
Report on Form 8-K dated November 12, 1997 (File No.
1-10042)).
4.14(b) First Amendment to Rights Agreement, dated as of August 11,
1999, between the registrant and EquiServe Trust Company,
N.A., as Rights Agent (incorporated by reference to Exhibit
2 to Registration Statement on Form 8-A, Amendment No. 1,
dated August 12, 1999 (File No. 1-10042)).
5.1* Opinion of Gibson, Dunn & Crutcher LLP, Dallas, Texas, as
to the validity of the securities being registered.
5.2* Opinion of Hunton & Williams, Richmond, Virginia, as to the
validity of the securities being registered.
12.1 Statement of computation of ratio of earnings to fixed
charges (incorporated by reference to Exhibit 12 to Annual
Report on Form 10-K for fiscal year ended September 30,
2001 (File No. 1-10042)).
23.1 Consent of Gibson, Dunn & Crutcher LLP, Dallas, Texas (see
Exhibit 5.1).
23.2 Consent of Hunton & Williams, Richmond, Virginia (see
Exhibit 5.2).
23.3* Consent of Ernst & Young LLP.
24.1 Powers of Attorney (see signature page).
25.1 Statement of eligibility of SunTrust Bank on Form T-1
(incorporated by reference to Exhibit 25.1 to Registration
Statement on Form S-3/A filed November 6, 2000 (File No.
333-93705)).
-------------------------------
* Filed herewith.
** To be filed by amendment hereto or pursuant to a Current Report on Form 8-K
to be incorporated herein by reference.