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As filed with the Securities and Exchange Commission on March 1, 1999
Registration No. 333- ____________
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SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
ATMOS ENERGY CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Texas and Virginia 75-1743247
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
1800 Three Lincoln Centre
5430 LBJ Freeway
Dallas, Texas 75240
(Address of Principal Executive Offices) (Zip Code)
ATMOS ENERGY CORPORATION
1998 LONG-TERM INCENTIVE PLAN
(Full Title of Plan)
Copies to:
GLEN A. BLANSCET IRWIN F. SENTILLES III
Vice President, General Counsel Gibson, Dunn & Crutcher LLP
and Corporate Secretary 1717 Main Street
Atmos Energy Corporation Dallas, Texas 75201-7309
1800 Three Lincoln Centre
5430 LBJ Freeway
Dallas, Texas 75240
(Name and Address of Agent for Service)
(972) 934-9227
(Telephone Number, including Area Code, of Agent for Service)
CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
Proposed Maximum Proposed Maximum
Title of Securities Amount to be Offering Price Aggregate Amount of
to be Registered Registered (a) per Share (b) Offering Price (b) Registration Fee
- -----------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, no par value........ 1,500,000 $23.8125 $35,718,750 $9,929.82
</TABLE>
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(a) Includes such additional shares as may be issued as a result of the
antidilution provisions of the Plan, pursuant to Rule 416 promulgated under
the Securities Act of 1933.
(b) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457(h) promulgated under the Securities Act of 1933
on the basis of the average of the high and low prices of Registrant's
Common Stock as reported on the New York Stock Exchange on February 25,
1999.
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PART I
INFORMATION REQUIRED IN SECTION 10(a) PROSPECTUS
The information specified by Item 1 and Item 2 of Part I of Form S-8 is
omitted from this filing in accordance with the provisions of Rule 428 under the
Securities Act of 1933 (the "Securities Act"), and the introductory note of Part
I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed by Registrant with the Securities and
Exchange Commission (the "Commission") are incorporated by reference in this
Registration Statement:
(a) Registrant's Annual Report on Form 10-K for the fiscal year ended
September 30, 1998;
(b) Registrant's Quarterly Report on Form 10-Q for the quarter ended
December 31, 1998;
(c) The description of Registrant's Common Stock contained in the
Registrant's Registration Statement on Form 8-A dated September 7,
1988 (Commission File No.1-10042) filed pursuant to Section 12 of the
Securities Exchange Act of 1934 (the "Exchange Act"), and all
amendments thereto and reports which have been filed for the purpose
of updating such description, including, without limitation,
Registrant's Current Report on Form 8-K dated November 16, 1996.
All documents filed by Registrant pursuant to Sections 13(a), 13(c), 14, or
15(d) of the Exchange Act subsequent to the date of this Registration Statement
and prior to the filing of a post-effective amendment which indicates that all
securities offered have been sold or which de-registers all securities then
remaining unsold shall be deemed to be incorporated by reference in this
Registration Statement and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Registration Statement to the extent that a statement
contained herein or in any subsequently filed document which also is deemed to
be incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Registration Statement.
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Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
The validity of the shares of Registrant's Common Stock offered hereby has
been passed upon for Registrant by the law firm of Gibson, Dunn & Crutcher LLP,
Dallas, Texas. Dan Busbee, who is of counsel to Gibson, Dunn & Crutcher LLP, is
a director of Registrant, and beneficially owned a total of 4,471 shares of
Registrant's common stock at January 31, 1999.
Item 6. Indemnification of Directors and Officers.
The Texas Business Corporation Act ("TBCA") and the Virginia Stock
Corporation Act ("VSCA") 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 the Company's Restated Articles of Incorporation,
as Amended, and Article IX of the Company's 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 TBCA and Section 13.1-697 of the
VSCA, each director and officer of the Company may be indemnified by the Company
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
the Company if he acted in good faith and in a manner that he reasonably
believed to be in or not opposed to the best interests of the Company, 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 TBCA and the VSCA. If the director or
officer is found liable for willful or intentional misconduct in the performance
of his duty to the Company, then indemnification will not be made.
Article X of the Restated Articles of Incorporation, as Amended, of the
Company provides that no director of the Company shall be personally liable to
the Company or its shareholders for monetary damages for any breach of fiduciary
duty as a director except for liability (i) for any breach of duty of loyalty to
the Company or its shareholders, (ii) for an act or omission not in good faith
or which involves intentional misconduct or a knowing violation of law, (iii)
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, (iv) for an act or omission for which the liability of a
director is expressly provided by statute or (v) for an act related to an
unlawful stock repurchase or payment of a dividend. In addition, Article IX of
the Restated Articles of Incorporation, as Amended, and Article IX of the
Amended and Restated
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Bylaws of the Company require the Company 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 the Company or serves or served at the request of the Company as a
director, officer, partner, venturer, proprietor, trustee, employee, agent or
similar functionary of any other enterprise.
The above discussion of Article 2.02-1 of the TCBA and Section 13.1-697 of
the VSCA and of Registrant's Restated Articles of Incorporation, as Amended, and
Amended and Restated Bylaws, is not intended to be exhaustive, and is qualified
in its entirety by such statutes and Registrant's Restated Articles and Bylaws.
The Company maintains an officers' and directors' liability insurance
policy insuring officers and directors against certain liabilities, including
liabilities under the Securities Act. The effect of such policy is to indemnify
such officers and directors of the Company against losses incurred by them while
acting in such capacities.
Item 7. Exemption From Registration Claimed.
Not applicable.
Item 8. Exhibits.
The Exhibit Index immediately preceding the exhibits is incorporated herein
by reference.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of this Registration Statement (or the
most recent post-effective amendment hereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in this 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 end 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
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volume and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in this effective Registration Statement.
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) 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 Registrant pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated by
reference in this Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act, 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; and
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant undertakes that, for purposes of
determining any liability under the Securities Act, each filing of
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of
the Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this Registration Statement shall be deemed to
be a new registration statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and controlling
persons of Registrant pursuant to the foregoing provisions, or otherwise,
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
Registrant of expenses incurred or paid by a director, officer, or
controlling person of 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, 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 Securities Act and will be governed by the final
adjudication of such issue.
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SIGNATURE
Pursuant to the requirements of the Securities Act of 1933, Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Dallas, State of Texas, on March 1, 1999.
ATMOS ENERGY CORPORATION
By: /s/ ROBERT W. BEST
------------------------------
Robert W. Best
Chairman, President and CEO
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POWER OF ATTORNEY
Each person whose signature appears below hereby constitutes and appoints
Robert W. Best and Larry J. Dagley, or each of them, his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place, and stead, in any and all capacities, to sign
any and all amendments (including post-effective amendments) to this
Registration Statement, and to file the same, with all exhibits thereto, and all
other documents in connection therewith, with the Securities and Exchange
Commission, granting unto said attorney-in-fact and agent full power and
authority to do and perform each and every act and thing requisite and necessary
to be done, 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
or his substitute or substitutes may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement and Power of Attorney have been signed by the following
persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ ROBERT W. BEST Chairman, President and CEO March 1, 1999
- -------------------------------------- (Principal Executive Officer)
Robert W. Best
/s/ LARRY J. DAGLEY Executive Vice President and Chief March 1, 1999
- -------------------------------- Financial Officer
Larry J. Dagley (Principal Financial Officer)
/s/ TOM S. HAWKINS, JR. Vice President, Planning and March 1, 1999
- -------------------------------- Budgeting and Interim Controller
Tom S. Hawkins, Jr. (Principal Accounting Officer)
/s/ TRAVIS W. BAIN II Director March 1, 1999
- --------------------------------
Travis W. Bain II
/s/ DAN BUSBEE Director March 1, 1999
- --------------------------------
Dan Busbee
/s/ RICHARD W. CARDIN Director March 1, 1999
- --------------------------------
Richard W. Cardin
/s/ THOMAS J. GARLAND Director March 1, 1999
- --------------------------------
Thomas J. Garland
</TABLE>
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<TABLE>
<S> <C> <C>
/s/ GENE C. KOONCE Director March 1, 1999
- --------------------------------
Gene C. Koonce
Director
- --------------------------------
Vincent J. Lewis
/s/ THOMAS C. MEREDITH Director March 1, 1999
- --------------------------------
Thomas C. Meredith
/s/ PHILLIP E. NICHOL Director March 1, 1999
- --------------------------------
Phillip E. Nichol
/s/ CARL S. QUINN Director March 1, 1999
- --------------------------------
Carl S. Quinn
/s/ CHARLES K. VAUGHAN Director March 1, 1999
- --------------------------------
Charles K. Vaughan
/s/ RICHARD WARE II Director March 1, 1999
- --------------------------------
Richard Ware II
</TABLE>
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EXHIBIT INDEX
EXHIBIT
-------
NUMBER DESCRIPTION
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4.1 Restated Articles of Incorporation of the Company, as Amended (as
of July 31, 1997) (incorporated by reference to Exhibit 3.1 of
Form 10-K for fiscal year ended September 30, 1997).
4.2 Bylaws (Amended and Restated as of November 12, 1997)
(incorporated by reference to Exhibit 3.2 of Form 10-K for fiscal
year ended September 30, 1997 (File No. 1-10042)).
4.3 Specimen Common Stock Certificate (Atmos Energy Corporation)
(incorporated by reference to Exhibit 4(b) of Registrant's Annual
Report on Form 10-K (File No. 1-10042) for the fiscal year ended
September 30, 1988).
4.4 Rights Agreement, dated as of November 12, 1997, between the
Company and BankBoston, N.A. (incorporated by reference to Exhibit
4.1 of Form 8-K dated November 12, 1997).
5.1 Opinion of Gibson, Dunn & Crutcher LLP
23.1 Consent of Gibson, Dunn & Crutcher LLP
(included in Exhibit 5.1).
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Arthur Andersen LLP.
24.1 Power of Attorney (included on the signature page of this
Registration Statement).
99.1 Atmos Energy Corporation 1998 Long-Term Incentive Plan
(incorporated by reference to Exhibit A to Definitive Proxy
Statement on Schedule 14A filed December 30, 1998)
(File No. 1-10042).
<PAGE>
EXHIBIT 5.1
[LETTERHEAD OF GIBSON, DUNN & CRUTCHER LLP]
March 1, 1999
Atmos Energy Corporation
1800 Three Lincoln Centre
5430 LBJ Freeway
Dallas, Texas 75240
Re: Atmos Energy Corporation 1998 Long-Term Incentive Plan
Ladies and Gentlemen:
We have acted as special counsel for Atmos Energy Corporation, a Texas and
Virginia corporation (the "Company"), in connection with the registration under
the Securities Act of 1933, as amended (the "Act"), pursuant to a Registration
Statement on Form S-8 (the "Registration Statement"), of 1,500,000 shares of
common stock, no par value, of the Company (the "Shares") to be offered pursuant
to the Atmos Energy Corporation 1998 Long-Term Incentive Plan (the "Plan").
In connection with our examination of documents as hereinafter described,
we have assumed the genuineness of all signatures on, and the authenticity of,
all documents submitted to us as originals and the conformity to original
documents of all documents submitted to us as copies. With respect to
agreements and instruments executed by natural persons, we have assumed the
legal competency of such persons.
For the purpose of rendering this opinion, we have made such factual and
legal examination as we deemed necessary under the circumstances, and in that
connection we have examined, among other things, originals or copies of the
following:
(1) The Restated Articles of Incorporation of the Company, as amended to
date;
(2) The Amended and Restated Bylaws of the Company, as amended to date;
(3) Resolutions of the Company's Board of Directors with respect to the
transactions covered by this opinion; and
(4) Such other certificates and assurances from public officials, officers
and representatives of the Company that we considered necessary or
appropriate for the purpose of rendering this opinion.
On the basis of the foregoing examination, and in reliance thereon, we are
of the opinion that, assuming that the Shares are issued in accordance with the
provisions of the Plan, upon issuance of the Shares contemplated by the
Registration Statement, the Shares will be validly issued, fully paid and
nonassessable.
<PAGE>
We render no opinion herein as to matters involving the laws of any
jurisdiction other than the State of Texas, the United States of America and,
for the limited purpose referred to below, the Commonwealth of Virginia. We are
not admitted to practice law in the Commonwealth of Virginia and any opinion
herein as to the laws of such commonwealth is based solely upon a review of the
latest unofficial compilation of the Virginia Stock Corporation Act available to
us. This opinion is limited to the present corporate laws of the State of Texas
and the present federal laws of the United States (and to the present judicial
interpretations thereof), the Virginia Stock Corporation Act (to the limited
extent and for the limited purpose stated above) and to the facts as they
presently exist. We undertake no obligation to advise you as a result of
developments occurring after the date hereof or as a result of facts or
circumstances brought to our attention after the date hereof. This opinion may
be filed as an exhibit to the Registration Statement. Consent is also given to
the reference to this firm in the Registration Statement. In giving this
consent, we do not admit we are included in the category of persons whose
consent is required under Section 7 of the Act or the rules and regulations of
the Commission promulgated thereunder.
Very truly yours,
/s/ Gibson, Dunn & Crutcher LLP
GIBSON, DUNN & CRUTCHER LLP
IFS/AHC
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Exhibit 23.2
CONSENT OF INDEPENDENT AUDITOR
We consent to the incorporation by reference in the Registration Statement (Form
S-8) of Atmos Energy Corporation for the registration of 1,500,000 shares of its
common stock of our report dated November 10, 1998 with respect to the
consolidated financial statements of Atmos Energy Corporation incorporated by
reference in its Annual Report on Form 10-K for the year ended September 30,
1998, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
ERNST & YOUNG LLP
Dallas, Texas
March 1, 1999
<PAGE>
Exhibit 23.3
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this Form S-8 related to the 1998 Long-Term Incentive Plan of Atmos
Energy Corporation of our report dated February 14, 1997, appearing in the
Annual Report on Form 10-K for the year ended December 31, 1996, of United
Cities Gas Company.
/s/ ARTHUR ANDERSEN LLP
ARTHUR ANDERSEN LLP
Nashville, Tennessee
March 1, 1999
