exv10w6wa






EXHIBIT 10.6(a)




GOLDMAN, SACHS & CO. | 200 WEST STREET | NEW YORK, NEW YORK 10282 | TEL: 212-902-1000




Opening Transaction




	 	 	 

	To:

	 	Atmos Energy Corporation

P.O. Box 650205

Dallas, Texas 75265-0205
	 
	 	 
	A/C:

	 	042235028 
	 
	 	 
	From:

	 	Goldman, Sachs & Co.
	 
	 	 
	Re:

	 	Accelerated Stock Buyback
	 
	 	 
	Ref. No:

	 	As provided in the Supplemental Confirmation
	 
	 	 
	Date:

	 	July 1, 2010






     This master confirmation (this “Master Confirmation”), dated as of July 1, 2010 is intended to
set forth certain terms and provisions of certain Transactions (each, a “Transaction”) entered into
from time to time between Goldman, Sachs & Co. (“GS&Co.”) and Atmos Energy Corporation
(“Counterparty”). This Master Confirmation, taken alone, is neither a commitment by either party
to enter into any Transaction nor evidence of a Transaction. The additional terms of any
particular Transaction shall be set forth in a Supplemental Confirmation in the form of Schedule A
hereto (a “Supplemental Confirmation”), which shall reference this Master Confirmation and
supplement, form a part of, and be subject to this Master Confirmation. This Master Confirmation
and each Supplemental Confirmation together shall constitute a “Confirmation” as referred to in the
Agreement specified below.



     The definitions and provisions contained in the 2002 ISDA Equity Derivatives Definitions (the
“Equity Definitions”), as published by the International Swaps and Derivatives Association, Inc.,
are incorporated into this Master Confirmation. This Master Confirmation and each Supplemental
Confirmation evidence a complete binding agreement between Counterparty and GS&Co. as to the
subject matter and terms of each Transaction to which this Master Confirmation and such
Supplemental Confirmation relate and shall supersede all prior or contemporaneous written or oral
communications with respect thereto.



     This Master Confirmation and each Supplemental Confirmation supplement, form a part of, and
are subject to an agreement in the form of the 1992 ISDA Master Agreement (Multicurrency-Cross
Border) (the “Agreement”) as if GS&Co. and Counterparty had executed the Agreement on the date of
this Master Confirmation (but without any Schedule except for (i) the election of Loss and Second
Method, New York law (without reference to its choice of laws doctrine other than Title 14 of
Article 5 of the New York General Obligations Law) as the governing law and US Dollars (“USD”) as
the Termination Currency, (ii) the election that subparagraph (ii) of Section 2(c) will not apply
to the Transactions, (iii) the replacement of the word “third” in the last line of Section 5(a)(i)
with the word “first”) and (iv) the election that the “Cross Default” provisions of Section
5(a)(vi) shall apply to GS& Co. and shall apply Counterparty, with a “Threshold Amount” of USD 50
million (or its equivalent in another currency) in relation to GS&Co. and Counterparty; provided
that (i) the phrase “or becoming capable at such time of being declared” shall be deleted from
clause (1) of such Section 5(a)(vi); and (ii) the following language shall be added to the end
thereof: “Notwithstanding the foregoing, a default under subsection (2) hereof shall not
constitute an Event of Default if (i) the default was caused solely by error or omission of an
administrative or operational nature; (ii) funds were available to enable the party to make the
payment when due; and (iii) the payment is made within two Local Business Days of such party’s
receipt of written notice of its failure to pay.”



     The Transactions shall be the sole Transactions under the Agreement. If there exists any ISDA
Master Agreement between GS&Co. and Counterparty or any confirmation or other agreement between
GS&Co. and



 









 




Counterparty pursuant to which an ISDA Master Agreement is deemed to exist between GS&Co. and
Counterparty, then notwithstanding anything to the contrary in such ISDA Master Agreement, such
confirmation or agreement or any other agreement to which GS&Co. and Counterparty are parties, the
Transactions shall not be considered Transactions under, or otherwise governed by, such existing or
deemed ISDA Master Agreement.




     All provisions contained or incorporated by reference in the Agreement shall govern this
Master Confirmation and each Supplemental Confirmation except as expressly modified herein or in
the related Supplemental Confirmation.



     If, in relation to any Transaction to which this Master Confirmation and a Supplemental
Confirmation relate, there is any inconsistency between the Agreement, this Master Confirmation,
any Supplemental Confirmation and the Equity Definitions, the following will prevail for purposes
of such Transaction in the order of precedence indicated: (i) such Supplemental Confirmation;
(ii) this Master Confirmation; (iii) the Agreement; and (iv) the Equity Definitions.


1. Each Transaction constitutes a Share Forward Transaction for the purposes of the Equity
Definitions. Set forth below are the terms and conditions that, together with the terms and
conditions set forth in the Supplemental Confirmation relating to any Transaction, shall govern
such Transaction.




	 	 	 

	General Terms:
	 	 
	 
	 	 
	Trade Date:

	 	For each Transaction, as set forth in the related Supplemental Confirmation.
	 
	 	 
	Buyer:

	 	Counterparty
	 
	 	 
	Seller:

	 	GS&Co.
	 
	 	 
	Shares:

	 	Common stock, no par value, of Counterparty (Ticker: ATO).
	 
	 	 
	Exchange:

	 	New York Stock Exchange
	 
	 	 
	Related Exchange(s):

	 	All Exchanges.
	 
	 	 
	Prepayment\Variable
Obligation:

	 	Applicable
	 
	 	 
	Prepayment Amount:

	 	For each Transaction, as set forth in the related Supplemental Confirmation.
	 
	 	 
	Prepayment Date:

	 	For each Transaction, as set forth in the related Supplemental Confirmation.
	 
	 	 
	Counterparty Additional
Payment Amount:

	 	For each Transaction, as set forth in the Supplemental Confirmation.
Counterparty shall pay to GS&Co. the Counterparty Additional Payment Amount, if any, on the
Counterparty Additional Payment Date.
	 
	 	 
	Counterparty Additional
Payment Date:

	 	Three (3) Exchange Business Days following the Trade Date.
	 
	 	 
	Valuation:
	 	 
	 
	 	 
	VWAP Price:

	 	For any Exchange Business Day, the New York 10b-18 Volume Weighted Average Price
per Share for the regular trading session (including any extensions thereof) of the
Exchange on such Exchange Business Day (without regard to pre-open or after hours trading
outside of such regular trading session for such Exchange Business Day), as published by
Bloomberg at 4:15 p.m. New York time (or 15 minutes following the end of any extension of
the regular trading session) on such Exchange Business Day, on Bloomberg page “ATO.N






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	 	<Equity> AQR SEC” (or any successor thereto), or if such price
is not so reported on such Exchange Business Day for any reason or
is, in the Calculation Agent’s reasonable discretion, erroneous, such
VWAP Price shall be as reasonably determined by the Calculation
Agent. For purposes of calculating the VWAP Price, the Calculation
Agent will include only those trades that are reported during the
period of time during which Counterparty could purchase its own shares under Rule 10b-18(b)(2) and are effected pursuant to the
conditions of Rule 10b-18(b)(3), each under the Securities Exchange
Act of 1934, as amended (the “Exchange Act”) (such trades, “Rule
10b-18 eligible transactions”).
	 
	 	 
	Forward Price:

	 	The average of the VWAP Prices for the Exchange Business Days in the Calculation
Period, subject to “Valuation Disruption” below.
	 
	 	 
	Forward Price
Adjustment Amount:

	 	For each Transaction, as set forth in the related Supplemental Confirmation.
	 
	 	 
	Calculation Period:

	 	The period from and including the Calculation Period Start Date to and
including the Termination Date.
	 
	 	 
	Calculation Period Start Date:

	 	For each Transaction, as set forth in the related Supplemental Confirmation.
	 
	 	 
	Termination Date:

	 	The Scheduled Termination Date; provided that GS&Co. shall have the right to
designate any Exchange Business Day on or after the First Acceleration Date to be the
Termination Date (the “Accelerated Termination Date”) by delivering notice to Counterparty
of any such designation prior to 5:00 p.m. New York City time on the Exchange Business Day
immediately following the designated Accelerated Termination Date.
	 
	 	 
	Scheduled Termination Date:

	 	For each Transaction, as set forth in the related Supplemental
Confirmation, subject to postponement as provided in “Valuation Disruption” below.
	 
	 	 
	First Acceleration Date:

	 	For each Transaction, as set forth in the related Supplemental Confirmation.
	 
	 	 
	Valuation Disruption:

	 	The definition of “Market Disruption Event” in Section 6.3(a) of the
Equity Definitions is hereby amended by deleting the words “at any time during the one-hour
period that ends at the relevant Valuation Time, Latest Exercise Time, Knock-in Valuation
Time or Knock-out Valuation Time, as the case may be” and inserting the words “at any time
on any Scheduled Trading Day during the Calculation Period or Settlement Valuation Period”
after the word “material,” in the third line thereof. 




Section 6.3(d) of the Equity Definitions is hereby amended by
deleting the remainder of the provision following the term “Scheduled
Closing Time” in the fourth line thereof.
	 
	 	 
	 

	 	Notwithstanding anything to the contrary in the Equity Definitions,
to the extent that a Disrupted Day occurs (i) in the Calculation
Period, the Calculation Agent may, in its good faith and commercially
reasonable discretion, postpone the Scheduled Termination Date by no
more than such number of Disrupted Days, or (ii) in the Settlement
Valuation Period, the Calculation Agent may extend the Settlement
Valuation Period by no more than such number of Disrupted Days. If
any such Disrupted Day is a Disrupted Day because of a Market
Disruption Event (or a deemed Market Disruption Event as provided
herein), the Calculation Agent shall determine whether (i) such
Disrupted Day is a Disrupted Day in full, in which case the VWAP
Price for such Disrupted Day shall not be included for purposes of
determining the Forward Price or the Settlement Price,






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	 	as the case may be, or (ii) such Disrupted Day is a Disrupted Day
only in part, in which case the VWAP Price for such Disrupted Day
shall be determined by the Calculation Agent based on Rule 10b-18
eligible transactions in the Shares on such Disrupted Day effected
before the relevant Market Disruption Event occurred and/or after the
relevant Market Disruption Event ended, and the weighting of the VWAP
Price for the relevant Exchange Business Days during the Calculation
Period or the Settlement Valuation Period, as the case may be, shall
be adjusted in a commercially reasonable manner by the Calculation
Agent for purposes of determining the Forward Price or the Settlement
Price, as the case may be, with such adjustments based on, among
other factors, the duration of any Market Disruption Event and the
volume, historical trading patterns and price of the Shares. Any
Scheduled Trading Day on which the Exchange is scheduled to close
prior to its normal close of trading shall be deemed to be a
Disrupted Day in full.
	 
	 	 
	 

	 	If a Disrupted Day occurs during the Calculation Period or the
Settlement Valuation Period, as the case may be, and each of the nine
immediately following Scheduled Trading Days is a Disrupted Day, then
the Calculation Agent, in its good faith and commercially reasonable
discretion, may deem such ninth Scheduled Trading Day to be an
Exchange Business Day that is not a Disrupted Day and determine the
VWAP Price for such ninth Scheduled Trading Day using its good faith
and commercially reasonable estimate of the value of the Shares on
such ninth Scheduled Trading Day based on the volume, historical
trading patterns and price of the Shares and such other factors as it
deems appropriate.
	 
	 	 
	Settlement Terms:
	 	 
	 
	 	 
	Settlement Procedures:

	 	If the Number of Shares to be Delivered is positive, Physical Settlement
shall be applicable; provided that GS&Co. does not, and shall not, make the agreement or
the representations set forth in Section 9.11 of the Equity Definitions related to the
restrictions imposed by applicable securities laws with respect to any Shares delivered by
GS&Co. to Counterparty under any Transaction. If the Number of Shares to be Delivered is
negative, then the Counterparty Settlement Provisions in Annex A shall apply.
	 
	 	 
	Number of Shares
to be Delivered:

	 	A number of Shares equal to (x)(a) the Prepayment Amount divided by
(b)(i) the Forward Price minus (ii) the Forward Price Adjustment Amount minus (y) the
number of Initial Shares.
	 
	 	 
	Excess Dividend Amount:

	 	For the avoidance of doubt, all references to the Excess Dividend Amount
shall be deleted from Section 9.2(a)(iii) of the Equity Definitions.
	 
	 	 
	Settlement Date:

	 	If the Number of Shares to be Delivered is positive, the date that is one
Settlement Cycle immediately following the Termination Date.
	 
	 	 
	Settlement Currency:

	 	USD
	 
	 	 
	Initial Share Delivery:

	 	GS&Co. shall deliver a number of Shares equal to the Initial Shares to
Counterparty on the Initial Share Delivery Date in accordance with Section 9.4 of the
Equity Definitions, with the Initial Share Delivery Date deemed to be a “Settlement Date”
for purposes of such Section 9.4.
	 
	 	 
	Initial Share Delivery Date:

	 	For each Transaction, as set forth in the related Supplemental Confirmation.
	 
	 	 
	Initial Shares:

	 	For each Transaction, as set forth in the related Supplemental Confirmation.






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	Share Adjustments:
	 	 
	 
	 	 
	Potential Adjustment Event:

	 	Notwithstanding anything to the contrary in Section 11.2(e) of the
Equity Definitions, an Extraordinary Dividend shall not constitute a Potential Adjustment
Event.
	 
	 	 
	 

	 	It shall constitute an additional Potential Adjustment Event if the
Scheduled Termination Date for any Transaction is postponed pursuant
to “Valuation Disruption” above, in which case the Calculation Agent
may, in its commercially reasonable discretion, adjust any relevant
terms of any such Transaction to the extent necessary to preserve as
nearly as practicable the fair value of such Transaction to GS&Co.
prior to such postponement.
	 
	 	 
	Extraordinary Dividend:

	 	For any calendar quarter, any dividend or distribution on the Shares
with an ex-dividend date occurring during such calendar quarter (other than any dividend or
distribution of the type described in Section 11.2(e)(i) or Section 11.2(e)(ii)(A) of the
Equity Definitions) (a “Dividend”) the amount or value of which (as determined by the
Calculation Agent), when aggregated with the amount or value (as determined by the
Calculation Agent) of any and all previous Dividends with ex-dividend dates occurring in
the same calendar quarter, exceeds the relevant Ordinary Dividend Amount.
	 
	 	 
	Ordinary Dividend Amounts:

	 	For each Transaction for each calendar quarter, as set forth in the
related Supplemental Confirmation.
	 
	 	 
	Method of Adjustment:

	 	Calculation Agent Adjustment
	 
	 	 
	Early Ordinary Dividend
Payment:

	 	If an ex-dividend date for any Dividend that is not an Extraordinary Dividend occurs
during any calendar quarter occurring (in whole or in part) during the Relevant Period (as
defined below) and is prior to the Scheduled Ex-Dividend Date for such calendar quarter,
the Calculation Agent shall make such adjustment to the exercise, settlement, payment or
any other terms of the relevant Transaction as the Calculation Agent determines appropriate
to account for the economic effect on the Transaction of such event.
	 
	 	 
	Scheduled Ex-Dividend
Dates:

	 	For each Transaction for each calendar quarter, as set forth in the related Supplemental Confirmation.
	 
	 	 
	Extraordinary Events:
	 	 
	 
	 	 
	Consequences of
Merger Events:
	 	 
	 
	 	 
	(a) Share-for-Share:

	 	Modified Calculation Agent Adjustment
	 
	 	 
	(b) Share-for-Other:

	 	Cancellation and Payment
	 
	 	 
	(c) Share-for-Combined:

	 	Component Adjustment
	 
	 	 
	Tender Offer:

	 	Applicable; provided that (i) Section 12.1(l) of the Equity Definitions shall be
amended (x) by deleting the parenthetical in the fifth line thereof, (y) by replacing
“that” in the fifth line thereof with “whether or not such announcement” and (z) by adding
immediately after the words “Tender Offer” in the fifth line thereof “, and any publicly
announced change or amendment to






5









 







	 	 	 

	 

	 	such an announcement (including the announcement of an abandonment of
such intention)” and (ii) Sections 12.3(a) and 12.3(d) of the Equity
Definitions shall each be amended by replacing each occurrence of the
words “Tender Offer Date” by “Announcement Date.”
	 
	 	 
	Consequences of
Tender Offers:
	 	 
	 
	 	 
	(a) Share-for-Share:

	 	Modified Calculation Agent Adjustment or, subject to the
proviso below, Cancellation and Payment, at the election of GS&Co.

	 
	 	 
	(b) Share-for-Other:

	 	Modified Calculation Agent Adjustment or, subject to the
proviso below, Cancellation and Payment, at the election of GS&Co.

	 
	 	 
	(c) Share-for-Combined:

	 	Modified Calculation Agent Adjustment or, subject to the
proviso below, Cancellation and Payment, at the election of GS&Co.

	 
	 	 
	 

	 	; provided that, without limiting the generality of clause
(ii) of Section 12.3(d) of the Equity Definitions, GS&Co. may
elect Cancellation and Payment for any clauses (a) through
(c) above, only if (i) the Tender Offer is for greater than
25% of the outstanding voting shares of the Issuer, as
determined by the Calculation Agent or (ii) GS&Co. concludes,
in its good faith discretion based on advice of counsel, that
as a result of any legal, regulatory or self-regulatory
requirements or related policies and procedures (whether or
not such requirements, policies or procedures are imposed by
law or have been voluntarily adopted generally by GS&Co.;
provided that such policies or procedures are related to
legal or regulatory issues and are generally applicable in
similar situations and applied to such Transaction in a
non-discriminatory manner) (x) it is appropriate to cancel
any Transaction or (y) it is no longer advisable to hedge any
Transaction in the manner contemplated on the Trade Date for
such Transaction.

	 
	 	 
	Nationalization,
Insolvency or Delisting:

	 	Cancellation and Payment; provided that in addition to the provisions
of Section 12.6(a)(iii) of the Equity Definitions, it shall also constitute a Delisting if
the Exchange is located in the United States and the Shares are not immediately re-listed,
re-traded or re-quoted on any of the New York Stock Exchange, the American Stock Exchange,
The NASDAQ Global Select Market or The NASDAQ Global Market (or their respective
successors); if the Shares are immediately re-listed, re-traded or re-quoted on any such
exchange or quotation system, such exchange or quotation system shall be deemed to be the
Exchange.
	 
	 	 
	Additional Disruption Events:
	 	 
	 
	 	 
	(a) Change in Law:

	 	Applicable

	 
	 	 
	(b) Failure to Deliver:

	 	Applicable

	 
	 	 
	(c) Insolvency Filing:

	 	Applicable

	 
	 	 
	(d) Loss of Stock Borrow:

	 	Applicable

	 
	 	 
	Maximum Stock Loan Rate:

	 	2.00% per annum

	 
	 	 
	(e) Increased Cost of Stock Borrow:

	 	Applicable







6









 






	 	 	 

	Initial Stock Loan Rate:

	 	0.375% per annum

	 
	 	 
	Hedging Party:

	 	GS&Co.

	 
	 	 
	Determining Party:

	 	GS&Co.

	 
	 	 
	Additional Termination Event:

	 	The declaration by the Issuer of any Extraordinary Dividend, the ex-dividend date for which
occurs or is scheduled to occur during the Relevant Dividend Period, will constitute an
Additional Termination Event, with Counterparty as the sole Affected Party and all
Transactions hereunder as the Affected Transactions.
	 
	 	 
	Relevant Dividend Period:

	 	The period from and including the Calculation Period Start Date to and including the Relevant
Dividend Period End Date.
	 
	 	 
	Relevant Dividend Period End Date:

	 	If the Number of Shares to be Delivered is negative, the last day of the Settlement Valuation
Period; otherwise, the Termination Date.
	 
	 	 
	Non-Reliance/Agreements and
Acknowledgements Regarding
Hedging Activities/Additional
Acknowledgements:

	 	Applicable
	 
	 	 
	Transfer:

	 	Notwithstanding anything to the contrary in the Agreement, GS&Co. may assign or transfer all
rights, title and interest, powers, privileges and remedies of GS&Co. under any Transaction,
in whole or in part, to an affiliate of GS&Co. whose obligations are guaranteed by The Goldman
Sachs Group, Inc. without the consent of Counterparty; provided that Counterparty will not, as
a result of such transfer, be required to (i) pay to the transferee or assignee an amount
greater than the amount that it would have been required to pay to GS&Co. in the absence of
such transfer or assignment or (ii) receive from the transferee or assignee an amount less
than the amount that Counterparty would have received from GS&Co. in the absence of such
transfer or assignment.
	 
	 	 
	GS&Co. Payment Instructions:

	 	Chase Manhattan Bank New York

For A/C Goldman, Sachs & Co.

A/C #930-1-011483

ABA: 021-000021
	 
	 	 
	Counterparty’s Contact Details
for Purpose of Giving Notice:

	 	To be provided by Counterparty
	 
	 	 
	GS&Co.’s Contact Details for
Purpose of Giving Notice:

	 	Goldman, Sachs & Co.

200 West Street

New York, NY 10282-2198

Attention: Serge Marquié, Equity Capital Markets

Telephone: 212-902-9779

Facsimile: 917-977-4253

Email: serge.marquie@gs.com
	 
	 	 
	 

	 	With a copy to:
	 
	 	 
	 

	 	Attention: Matthew S. Levine, Equity Capital Markets

Telephone: 212-902-3944






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	 	Facsimile: 917-977-3257

Email: matthew.levine@gs.com
	 
	 	 
	 

	 	And email notification to the following address:

Eq-derivs-notifications@am.ibd.gs.com





2. Calculation Agent. GS&Co. Following any determination or calculation by the Calculation
Agent hereunder, the Calculation Agent will, upon request, provide to Counterparty promptly
following such request a report (in a commonly used file format for the storage and manipulation of
financial data without disclosing GS&Co.’s proprietary models) displaying in reasonable detail the
basis for such determination or calculation, as the case may be.


3. Additional Mutual Representations, Warranties and Covenants of Each Party. In addition
to the representations, warranties and covenants in the Agreement, each party represents, warrants
and covenants to the other party that:




     (a) Eligible Contract Participant. It is an “eligible contract participant”, as
defined in the U.S. Commodity Exchange Act (as amended), and is entering into each Transaction
hereunder as principal (and not as agent or in any other capacity, fiduciary or otherwise) and not
for the benefit of any third party.



     (b) Accredited Investor. Each party acknowledges that the offer and sale of each
Transaction to it is intended to be exempt from registration under the Securities Act of 1933, as
amended (the “Securities Act”), by virtue of Section 4(2) thereof. Accordingly, each party
represents and warrants to the other that (i) it has the financial ability to bear the economic
risk of its investment in each Transaction and is able to bear a total loss of its investment,
(ii) it is an “accredited investor” as that term is defined under Regulation D under the Securities
Act and (iii) the disposition of each Transaction is restricted under this Master Confirmation, the
Securities Act and state securities laws.


4. Additional Representations, Warranties and Covenants of Counterparty. In addition to
the representations, warranties and covenants in the Agreement, Counterparty represents, warrants
and covenants to GS&Co. that:




     (a) As of the Trade Date for each Transaction hereunder, it will not be engaged in an “issuer
tender offer” as such term is defined in Rule 13e-4 under the Exchange Act nor is it aware of any
third party tender offer with respect to the Shares within the meaning of Rule 13e-1 under the
Exchange Act.



     (b) It is not entering into any Transaction (i) on the basis of, and is not aware of, any
material non-public information with respect to the Shares (ii) in anticipation of, in connection
with, or to facilitate, a distribution of its securities, a self tender offer or a third-party
tender offer or (iii) to create actual or apparent trading activity in the Shares (or any security
convertible into or exchangeable for the Shares) or to raise or depress or otherwise manipulate the
price of the Shares (or any security convertible into or exchangeable for the Shares) in violation
of the Exchange Act.



     (c) Each Transaction is being entered into pursuant to a publicly disclosed Share buy-back
program and its Board of Directors has approved the use of derivatives to effect the Share buy-back
program.



     (d) Without limiting the generality of Section 13.1 of the Equity Definitions, Counterparty
acknowledges that neither GS&Co. nor any of its affiliates is making any representations or
warranties or taking any position or expressing any view with respect to the treatment of any
Transaction under any accounting standards including ASC Topic 260, Earnings Per Share, ASC Topic
815, Derivatives and Hedging, or ASC Topic 480, Distinguishing Liabilities from Equity and ASC
815-40, Derivatives and Hedging – Contracts in Entity’s Own Equity.



     (e) As of the Trade Date for each Transaction hereunder, Counterparty is in compliance with
its reporting obligations under the Exchange Act and its most recent Annual Report on Form 10-K,
together with all reports subsequently filed by it pursuant to the Exchange Act, taken together and
as amended and supplemented to the date of this representation, do not, as of their respective
filing dates, contain any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading;



8









 





     (f) Counterparty shall report each Transaction to the extent required under the Exchange Act
and the rules and regulations thereunder.



     (g) The Shares are not, and Counterparty will not cause the Shares to be, subject to a
“restricted period” (as defined in Regulation M promulgated under the Exchange Act) at any time
during any Regulation M Period (as defined below) for any Transaction unless Counterparty has
provided written notice to GS&Co. of such restricted period not later than the Scheduled Trading
Day immediately preceding the first day of such “restricted period”; Counterparty acknowledges that
any such notice may cause a Disrupted Day to occur pursuant to Section 5 below; accordingly,
Counterparty acknowledges that its delivery of such notice must comply with the standards set forth
in Section 6 below; “Regulation M Period” means, for any Transaction, (i) the Relevant Period (as
defined below) and (ii) the Settlement Valuation Period, if any, for such Transaction. “Relevant
Period” means, for any Transaction, the period commencing on the Calculation Period Start Date for
such Transaction and ending on the earlier of (i) the Scheduled Termination Date and (ii) the last
Additional Relevant Day (as specified in the related Supplemental Confirmation) for such
Transaction, or such earlier day as elected by GS&Co. and communicated to Counterparty on such day
(or, if later, the First Acceleration Date without regard to any acceleration thereof pursuant to
“Special Provisions for Friendly Transaction Announcements” below).



     (h) As of the Trade Date, the Prepayment Date, the Initial Share Delivery Date, the Settlement
Date and the date of any Second Settlement, if any, for each Transaction, Counterparty is not
“insolvent” (as such term is defined under Section 101(32) of the U.S. Bankruptcy Code (Title 11 of
the United States Code) (the “Bankruptcy Code”)) and Counterparty would be able to purchase a
number of Shares with a value equal to the Prepayment Amount in compliance with the laws of the
jurisdiction of Counterparty’s incorporation.



     (i) Counterparty is not and, after giving effect to any Transaction, will not be, required to
register as an “investment company” as such term is defined in the Investment Company Act of 1940,
as amended.



     (j) Counterparty has not and will not enter into agreements with respect to the Shares (or any
security convertible into or exchangeable for the Shares) similar to the Transactions described
herein where any initial hedge period, calculation period, relevant period or settlement valuation
period (each however defined) in such other transaction will overlap at any time (including as a
result of extensions in such initial hedge period, calculation period, relevant period or
settlement valuation period as provided in the relevant agreements) with any Relevant Period or, if
applicable, any Settlement Valuation Period under this Master Confirmation. In the event that the
initial hedge period, relevant period, calculation period or settlement valuation period in any
other similar transaction overlaps with any Relevant Period or, if applicable, Settlement Valuation
Period under this Master Confirmation as a result of any postponement of the Scheduled Termination
Date or extension of the Settlement Valuation Period pursuant to “Valuation Disruption” above,
Counterparty shall promptly amend such transaction to avoid any such overlap.


5. Regulatory Disruption. In the event that GS&Co. concludes, in its good faith discretion
based on advice of counsel, that it is appropriate with respect to any legal, regulatory or
self-regulatory requirements or related policies and procedures (whether or not such requirements,
policies or procedures are imposed by law or have been voluntarily adopted by GS&Co.; provided that
such policies or procedures are related to legal or regulatory issues and are generally applicable
in similar situations and applied to any Transaction hereunder in a non-discriminatory manner), for
it to refrain from or decrease any market activity on any Scheduled Trading Day or Days during the
Calculation Period or, if applicable, the Settlement Valuation Period, GS&Co. may by written notice
to Counterparty elect to deem that a Market Disruption Event has occurred and will be continuing on
such Scheduled Trading Day or Days, subject to the other provisions under “Valuation Disruption” in
Section 1 above.



6. 10b5-1 Plan. Counterparty represents, warrants and covenants to GS&Co. that:




     (a) Counterparty is entering into this Master Confirmation and each Transaction hereunder in
good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b5-1 under the
Exchange Act (“Rule 10b5-1”) or any other antifraud or anti-manipulation provisions of the federal
or applicable state securities laws and that it has not entered into or altered and will not enter
into or alter any corresponding or hedging transaction or position with respect to the Shares.
Counterparty acknowledges that it is the intent of the parties that each



9









 




Transaction entered into under this Master Confirmation comply with the requirements of paragraphs
(c)(1)(i)(A) and (B) of Rule 10b5-1 and each Transaction entered into under this Master
Confirmation shall be interpreted to comply with the requirements of Rule 10b5-1(c).




     (b) Counterparty will not seek to control or influence GS&Co.’s decision to make any
“purchases or sales” (within the meaning of Rule 10b5-1(c)(1)(i)(B)(3)) under any Transaction
entered into under this Master Confirmation, including, without limitation, GS&Co.’s decision to
enter into any hedging transactions. Counterparty represents and warrants that it has consulted
with its own advisors as to the legal aspects of its adoption and implementation of this Master
Confirmation and each Supplemental Confirmation under Rule 10b5-1.



     (c) Counterparty acknowledges and agrees that any amendment, modification, waiver or
termination of this Master Confirmation or the relevant Supplemental Confirmation must be effected
in accordance with the requirements for the amendment or termination of a “plan” as defined in Rule
10b5-1(c). Without limiting the generality of the foregoing, any such amendment, modification,
waiver or termination shall be made in good faith and not as part of a plan or scheme to evade the
prohibitions of Rule 10b-5, and no such amendment, modification or waiver shall be made at any time
at which Counterparty or any officer, director, manager or similar person of Counterparty is aware
of any material non-public information regarding Counterparty or the Shares.


7. Counterparty Purchases. Counterparty (or any “affiliated purchaser” as defined in Rule
10b-18 under the Exchange Act (“Rule 10b-18”)) shall not, without the prior written consent of
GS&Co., directly or indirectly purchase any Shares (including by means of a derivative instrument),
listed contracts on the Shares or securities that are convertible into, or exchangeable or
exercisable for Shares (including, without limitation, any Rule 10b-18 purchases of blocks (as
defined in Rule 10b-18)) during any Relevant Period or, if applicable, Settlement Valuation Period,
except through GS&Co.



8. Special Provisions for Merger Transactions. Notwithstanding anything to the contrary
herein or in the Equity Definitions:




     (a) Counterparty agrees that it:




     (i) will not during the period commencing on the Trade Date through the end of the
Relevant Period or, if applicable, the Settlement Valuation Period for any Transaction make,
or to the extent it is within its reasonable control, permit to be made, any public
announcement (as defined in Rule 165(f) under the Securities Act) of any Merger Transaction
or potential Merger Transaction (a “Merger Announcement”) unless such public announcement is
made prior to the opening or after the close of the regular trading session on the Exchange
for the Shares;




     (ii) shall promptly (but in any event prior to the next opening of the regular trading
session on the Exchange) notify GS&Co. following any such announcement that such
announcement has been made; and




     (iii) shall promptly (but in any event prior to the next opening of the regular trading
session on the Exchange) provide GS&Co. with written notice specifying (i) Counterparty’s
average daily Rule 10b-18 Purchases (as defined in Rule 10b-18) during the three full
calendar months immediately preceding the announcement date of any Merger Transaction or
potential Merger Transaction that were not effected through GS&Co. or its affiliates and
(ii) the number of Shares purchased pursuant to the proviso in Rule 10b-18(b)(4) under the
Exchange Act for the three full calendar months preceding the announcement date of any
Merger Transaction or potential Merger Transaction. Such written notice shall be deemed to
be a certification by Counterparty to GS&Co. that such information is true and correct. In
addition, Counterparty shall promptly notify GS&Co. of the earlier to occur of the
completion of such transaction and the completion of the vote by target shareholders.
Counterparty acknowledges that any such notice may cause the terms of any Transaction to be
adjusted or such Transaction to be terminated, to the extent otherwise provided below;
accordingly, Counterparty acknowledges that its delivery of such notice must comply with the
standards set forth in Section 6 above.



10









 





     (b) If a Merger Announcement has been made, GS&Co. in its sole discretion may (i) make, in
good faith and in a commercially reasonable manner, adjustments to the terms of any Transaction,
including, without limitation, the Scheduled Termination Date or the Forward Price Adjustment
Amount, and/or suspend the Calculation Period and/or any Settlement Valuation Period or (ii)
terminate any Transaction by prior written notice to Counterparty, in which case such Transaction
will be cancelled as of the date designated by GS&Co. in such notice and a Cancellation Amount (as
determined by GS&Co. as the Determining Party) shall be paid by one party to the other.



     “Merger Transaction” means any merger, acquisition or similar transaction involving a
recapitalization as contemplated by Rule 10b-18(a)(13)(iv) under the Exchange Act.


9. Special Provisions for Friendly Transaction Announcements. (a) If a Friendly
Transaction Announcement occurs on or prior to the Settlement Date for any Transaction, then the
Number of Shares to be Delivered for such Transaction shall be determined as if clause (x)(b) of
the definition thereof were replaced with “(b) the Forward Price.” If a Friendly Transaction
Announcement occurs after the Trade Date, but prior to the First Acceleration Date of any
Transaction, the First Acceleration Date shall be the date of such Friendly Transaction
Announcement. If a Friendly Transaction Announcement occurs after the Settlement Date for any
Transaction or any earlier date of termination or cancellation of such Transaction pursuant to
Section 6 of the Agreement or Article 12 of the Equity Definitions, then a second settlement of
such Transaction (a “Second Settlement”) shall occur (notwithstanding such earlier termination or
cancellation) with a Number of Shares to be Delivered equal to the lesser of (i) zero and (ii) (x)
the Number of Shares to be Delivered determined pursuant to the first sentence of this paragraph as
if such Friendly Transaction Announcement occurred prior to such Settlement Date minus (y) the
Number of Shares to be Delivered determined pursuant to Section 1 of this Master Confirmation
(provided that in the case of a Second Settlement occurring after such an early termination or
cancellation, a Number of Shares to be Delivered shall not be determined and instead a Forward Cash
Settlement Amount will be determined as provided in Annex A).




     (b) “Friendly Transaction Announcement” means (i) an Acquisition Transaction Announcement by
Counterparty or its board of directors prior to the Settlement Date or any earlier date of
termination or cancellation of the relevant Transaction pursuant to Section 6 of the Agreement or
Article 12 of the Equity Definitions (such date, the “Actual Termination Date”), (ii) (A) an
announcement by Counterparty or its board of directors prior to the date three months following the
Scheduled Termination Date that an Acquisition Transaction that is the subject of an Acquisition
Transaction Announcement occurring prior to the Actual Termination Date has been approved, agreed
to, recommended by or otherwise consented to by Counterparty or its board of directors, or
negotiated by Counterparty or any authorized representative of Counterparty or (B) consummation
prior to the date three months following the Scheduled Termination Date of an Acquisition
Transaction that is the subject of an Acquisition Transaction Announcement occurring prior to the
Actual Termination Date, or (iii) where Counterparty or its board of directors has a legal
obligation to make a recommendation to its shareholders in respect of any such Acquisition
Transaction prior to the date three months following the Scheduled Termination Date, the absence of
a recommendation that its shareholders reject such transaction.



     (c) “Acquisition Transaction Announcement” means (i) the announcement of an Acquisition
Transaction, (ii) an announcement that Counterparty or any of its subsidiaries has entered into an
agreement, a letter of intent or an understanding designed to result in an Acquisition Transaction,
(iii) the announcement of the intention to solicit or enter into, or to explore strategic
alternatives or other similar undertaking that may include (as stated in such announcement), an
Acquisition Transaction, or (iv) any other announcement that in the reasonable judgment of the
Calculation Agent is reasonably likely to result in an Acquisition Transaction. For the avoidance
of doubt, announcements as used in the definition of Acquisition Transaction Announcement refer to
any public announcement whether made by the Issuer or a third party.



     (d) “Acquisition Transaction” means (i) any Merger Event (for purposes of this definition the
definition of Merger Event shall be read with the references therein to “100%” being replaced by
“25%” and to “50%” by “75%” and without reference to the clause beginning immediately following the
definition of Reverse Merger therein to the end of such definition), Tender Offer or Merger
Transaction or any other transaction involving the merger of Counterparty with or into any third
party, (ii) the sale or transfer of all or substantially all of the assets of Counterparty, (iii) a
recapitalization, reclassification, binding share exchange or other similar transaction with



11









 




respect to Counterparty, (iv) any acquisition, lease, exchange, transfer, disposition (including by
way of spin-off or distribution) of assets (including any capital stock or other ownership
interests in subsidiaries) or other similar event by Counterparty or any of its subsidiaries where
the aggregate consideration transferable or receivable by or to Counterparty or its subsidiaries
exceeds 25% of the market capitalization of Counterparty and (v) any transaction in which
Counterparty or its board of directors has a legal obligation to make a recommendation to its
shareholders in respect of such transaction (whether pursuant to Rule 14e-2 under the Exchange Act
or otherwise).



10. Acknowledgments. (a) The parties hereto intend for:





     (i) each Transaction to be a “securities contract” as defined in Section 741(7) of the
Bankruptcy Code, a “swap agreement” as defined in Section 101(53B) of the Bankruptcy Code
and a “forward contract” as defined in Section 101(25) of the Bankruptcy Code, and the
parties hereto to be entitled to the protections afforded by, among other Sections, Sections
362(b)(6), 362(b)(17), 362(b)(27), 362(o), 546(e), 546(g), 546(j), 555, 556, 560 and 561 of
the Bankruptcy Code;




     (ii) the Agreement to be a “master netting agreement” as defined in Section 101(38A) of
the Bankruptcy Code;




     (iii) a party’s right to liquidate, terminate or accelerate any Transaction, net out or
offset termination values or payment amounts, and to exercise any other remedies upon the
occurrence of any Event of Default or Termination Event under the Agreement with respect to
the other party or any Extraordinary Event that results in the termination or cancellation
of any Transaction to constitute a “contractual right” (as defined in the Bankruptcy Code);
and




     (iv) all payments for, under or in connection with each Transaction, all payments for
the Shares (including, for the avoidance of doubt, payment of the Prepayment Amount) and the
transfer of such Shares to constitute “settlement payments” and “transfers” (as defined in
the Bankruptcy Code).



     (b) Counterparty acknowledges that:



          (i) during the term of any Transaction, GS&Co. and its affiliates may buy or sell Shares or
other securities or buy or sell options or futures contracts or enter into swaps or other
derivative securities in order to establish, adjust or unwind its hedge position with respect to
such Transaction;




          (ii) GS&Co. and its affiliates may also be active in the market for the Shares other than in
connection with hedging activities in relation to any Transaction;




          (iii) GS&Co. shall make its own determination as to whether, when or in what manner any
hedging or market activities in Counterparty’s securities shall be conducted and shall do so in a
manner that it deems appropriate to hedge its price and market risk with respect to the Forward
Price and the VWAP Price;




          (iv) any market activities of GS&Co. and its affiliates with respect to the Shares may affect
the market price and volatility of the Shares, as well as the Forward Price and VWAP Price, each in
a manner that may be adverse to Counterparty; and




          (v) each Transaction is a derivatives transaction in which it has granted GS&Co. an option;
GS&Co. may purchase shares for its own account at an average price that may be greater than, or
less than, the price paid by Counterparty under the terms of the related Transaction.



11. Credit Support Documents. The parties hereto acknowledge that no Transaction hereunder
is secured by any collateral that would otherwise secure the obligations of Counterparty herein or
pursuant to the Agreement.



12. Set-off. (a) The parties agree to amend Section 6 of the Agreement by adding a new
Section 6(f) thereto as follows:







12









 









“(f) Upon the occurrence of an Event of Default or Termination
Event with respect to a party who is the Defaulting Party or the
Affected Party (“X”), the other party (“Y”) will have the right
(but not be obliged) without prior notice to X or any other person
to set-off or apply any obligation of X owed to Y (or any Affiliate
of Y) (whether or not matured or contingent and whether or not
arising under the Agreement, and regardless of the currency, place
of payment or booking office of the obligation) against any
obligation of Y (or any Affiliate of Y) owed to X (whether or not
matured or contingent and whether or not arising under the
Agreement, and regardless of the currency, place of payment or
booking office of the obligation). Y will give notice to the other
party of any set-off effected under this Section 6(f).




Amounts (or the relevant portion of such amounts) subject to
set-off may be converted by Y into the Termination Currency at the
rate of exchange at which such party would be able, acting in a
reasonable manner and in good faith, to purchase the relevant
amount of such currency. If any obligation is unascertained, Y may
in good faith estimate that obligation and set-off in respect of
the estimate, subject to the relevant party accounting to the other
when the obligation is ascertained. Nothing in this Section 6(f)
shall be effective to create a charge or other security interest.
This Section 6(f) shall be without prejudice and in addition to any
right of set-off, combination of accounts, lien or other right to
which any party is at any time otherwise entitled (whether by
operation of law, contract or otherwise).”



     (b) Notwithstanding anything to the contrary in the foregoing, GS&Co. agrees not to set off or
net amounts due from Counterparty with respect to any Transaction against amounts due from GS&Co.
to Counterparty with respect to contracts or instruments that are not Equity Contracts. “Equity
Contract” means any transaction or instrument that does not convey to GS&Co. rights, or the ability
to assert claims, that are senior to the rights and claims of common stockholders in the event of
Counterparty’s bankruptcy.


13. Delivery of Shares. Notwithstanding anything to the contrary herein, GS&Co. may, by
prior notice to Counterparty, satisfy its obligation to deliver any Shares or other securities on
any date due (an “Original Delivery Date”) by making separate deliveries of Shares or such
securities, as the case may be, at more than one time on or prior to such Original Delivery Date,
so long as the aggregate number of Shares and other securities so delivered on or prior to such
Original Delivery Date is equal to the number required to be delivered on such Original Delivery
Date.



14. Early Termination. In the event that (i) an Early Termination Date (whether as a
result of an Event of Default or a Termination Event) occurs or is designated with respect to any
Transaction (except as a result of a Merger Event in which the consideration or proceeds to be paid
to holders of Shares consists solely of cash) or (ii) the Transaction is cancelled or terminated
upon the occurrence of an Extraordinary Event or pursuant to Section 8(b) hereof, if either party
would owe any amount to the other party pursuant to Section 6(d)(ii) of the Agreement or any
Cancellation Amount pursuant to Article 12 of the Equity Definitions (any such amount, a “Payment
Amount”), then, in lieu of any payment of such Payment Amount, Counterparty may, no later than the
Early Termination Date or the date on which such Transaction is terminated or cancelled, elect to
deliver or for GS&Co. to deliver, as the case may be, to the other party a number of Shares (or, in
the case of a Merger Event, a number of units, each comprising the number or amount of the
securities or property that a hypothetical holder of one Share would receive in such Merger Event
(each such unit, an “Alternative Delivery Unit” and, the securities or property comprising such
unit, “Alternative Delivery Property”)) with a value equal to the Payment Amount, as determined by
the Calculation Agent (and the parties agree that, in making such determination of value, the
Calculation Agent may take into account a number of factors, including the market price of the
Shares or Alternative Delivery Property on the date of early termination and, if such delivery is
made by GS&Co., the prices at which GS&Co. purchases Shares or Alternative Delivery Property to
fulfill its delivery obligations under this Section 14); provided that in determining the
composition of any Alternative Delivery Unit, if the relevant Merger Event involves a choice of
consideration to be received by holders, such holder shall be deemed to have elected to receive the
maximum possible amount of cash. If such delivery is made by Counterparty, paragraphs 2 through 7
of Annex
A shall apply


13









 






as if such delivery were a settlement of the Transaction to which Net Share
Settlement applied, the Cash Settlement Payment Date were the Early Termination Date and the
Forward Cash Settlement Amount were zero (0) minus the Payment Amount owed by Counterparty.



15. Calculations and Payment Date upon Early Termination. The parties acknowledge and
agree that in calculating Loss pursuant to Section 6 of the Agreement GS&Co. may (but need not)
determine losses without reference to actual losses incurred but based on expected losses assuming
a commercially reasonable (including without limitation with regard to reasonable legal and
regulatory guidelines) risk bid were used to determine loss to avoid awaiting the delay associated
with closing out any hedge or related trading position in a commercially reasonable manner prior to
or sooner following the designation of an Early Termination Date. Notwithstanding anything to the
contrary herein or in the Equity Definitions, if Counterparty elects to receive Shares or
Alternative Delivery Property in accordance with Section 14, such Shares or Alternative Delivery
Property shall be delivered on a date selected by GS&Co as promptly as practicable.



16. Automatic Termination Provisions. Notwithstanding anything to the contrary in Section
6 of the Agreement, if a Termination Price is specified in any Supplemental Confirmation, then an
Additional Termination Event with Counterparty as the sole Affected Party and the Transaction to
which such Supplemental Confirmation relates as the Affected Transaction will automatically occur
without any notice or action by GS&Co. or Counterparty if the price of the Shares on the Exchange
at any time falls below such Termination Price, and the Exchange Business Day that the price of the
Shares on the Exchange at any time falls below the Termination Price will be the “Early Termination
Date” for purposes of the Agreement.



17. Delivery of Cash. For the avoidance of doubt, nothing in this Master Confirmation
shall be interpreted as requiring Counterparty to deliver cash in respect of the settlement of the
Transactions contemplated by this Master Confirmation following payment by Counterparty of the
relevant Prepayment Amount and any relevant Counterparty Additional Payment Amount, except in
circumstances where the required cash settlement thereof is permitted for classification of the
contract as equity by ASC 815-40-15 (EITF Issue 00-19) as in effect on the relevant Trade Date
(including, without limitation, where Counterparty so elects to deliver cash or fails timely to
elect to deliver Shares or Alternative Delivery Property in respect of the settlement of such
Transactions).



18. Claim in Bankruptcy. GS&Co. acknowledges and agrees that this Confirmation is not
intended to convey to it rights with respect to the Transaction that are senior to the claims of
common stockholders in the event of Counterparty’s bankruptcy.



19. Governing Law. The Agreement, this Master Confirmation, each Supplemental Confirmation
and all matters arising in connection with the Agreement, this Master Confirmation and each
Supplemental Confirmation shall be governed by, and construed and enforced in accordance with, the
laws of the State of New York (without reference to its choice of laws doctrine other than Title 14
of Article 5 of the New York General Obligations Law).



20. Offices.




     (a) The Office of GS&Co. for each Transaction is: 200 West Street, New York, New York 10282.



     (b) The Office of Counterparty for each Transaction is: 5430 LBJ Freeway, Suite 160 Dallas, TX
75240.


21. Waiver of Jury Trial. EACH PARTY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING RELATING
TO THE AGREEMENT, THIS MASTER CONFIRMATION, EACH SUPPLEMENTAL CONFIRMATION AND ALL MATTERS ARISING
IN CONNECTION WITH THE AGREEMENT, THIS MASTER CONFIRMATION AND EACH SUPPLEMENTAL CONFIRMATION.







14









 







22. Submission to Jurisdiction. THE PARTIES HERETO IRREVOCABLY SUBMIT TO THE EXCLUSIVE
JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED IN THE BOROUGH OF MANHATTAN, IN THE CITY OF
NEW YORK IN ANY SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THE AGREEMENT, THIS MASTER
CONFIRMATION AND ANY SUPPLEMENTAL CONFIRMATION OR THE TRANSACTIONS HEREUNDER.



23. Counterparts. This Master Confirmation may be executed in any number of counterparts,
all of which shall constitute one and the same instrument, and any party hereto may execute this
Master Confirmation by signing and delivering one or more counterparts.





15









 








     Counterparty hereby agrees (a) to check this Master Confirmation carefully and immediately
upon receipt so that errors or discrepancies can be promptly identified and rectified and (b) to
confirm that the foregoing (in the exact form provided by GS&Co.) correctly sets forth the terms of
the agreement between GS&Co. and Counterparty with respect to any particular Transaction to which
this Master Confirmation relates, by manually signing this Master Confirmation or this page hereof
as evidence of agreement to such terms and providing the other information requested herein and
immediately returning an executed copy to Equity Derivatives Documentation Department, Facsimile
No. 212-428-1980/83.



	 	 	 	 	 
	 	Yours faithfully,



GOLDMAN, SACHS & CO.

 	 
	 	By: 	/s/ JONATHAN LIPNICK
 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 



	 	 	 	 	 

	Agreed and Accepted By:	 	 
	 
	 	 	 	 
	ATMOS ENERGY CORPORATION	 	 
	 
	 	 	 	 
	By:

	 	/s/ FRED E. MEISENHEIMER	 	 
	 

	 	 

Name: Fred E. Meisenheimer
	 	 
	 

	 	Title: Senior Vice President and Chief Financial Officer	 	 






 









 






SCHEDULE A




SUPPLEMENTAL CONFIRMATION



	 	 	 

	To:

	 	Atmos Energy Corporation
	 

	 	P.O. Box 650205
	 

	 	Dallas, Texas 75265-0205
	 
	 	 
	From:

	 	Goldman, Sachs & Co.
	 
	 	 
	Subject:

	 	Accelerated Stock Buyback
	 
	 	 
	Ref. No:

	 	[Insert Reference No.]
	 
	 	 
	Date:

	 	[Insert Date]






          The purpose of this Supplemental Confirmation is to confirm the terms and conditions of the
Transaction entered into between Goldman, Sachs & Co. (“GS&Co.”) and Atmos Energy Corporation
(“Counterparty”) (together, the “Contracting Parties”) on the Trade Date specified below. This
Supplemental Confirmation is a binding contract between GS&Co. and Counterparty as of the relevant
Trade Date for the Transaction referenced below.



1. This Supplemental Confirmation supplements, forms part of, and is subject to the Master
Confirmation dated as of July 1, 2010 (the “Master Confirmation”) between the Contracting Parties,
as amended and supplemented from time to time. All provisions contained in the Master Confirmation
govern this Supplemental Confirmation except as expressly modified below.



2. The terms of the Transaction to which this Supplemental Confirmation relates are as follows:




	 	 	 	 	 

	Trade Date:

	 	[          ]	 	 
	 
	 	 	 	 
	Forward Price Adjustment Amount:

	 	USD [     ]	 	 
	 
	 	 	 	 
	Calculation Period Start Date:

	 	[          ]	 	 
	 
	 	 	 	 
	Scheduled Termination Date:

	 	[          ]	 	 
	 
	 	 	 	 
	First Acceleration Date:

	 	[          ]	 	 
	 
	 	 	 	 
	Prepayment Amount:

	 	USD [          ]	 	 
	 
	 	 	 	 
	Prepayment Date:

	 	[          ]	 	 
	 
	 	 	 	 
	Counterparty Additional Payment Amount:

	 	USD [          ]	 	 






A-1









 






	 	 	 	 	 

	Initial Shares:

	 	[          ] Shares; provided
that if, in connection with the
Transaction, GS&Co. is unable,
after using its good faith
commercially reasonable efforts,
to borrow or otherwise acquire a
number of Shares equal to the
Initial Shares for delivery to
Counterparty on the Initial Share
Delivery Date, the Initial Shares
delivered on the Initial Share
Delivery Date shall be reduced to
such number of Shares that GS&Co.
is able to so borrow or otherwise
acquire, and GS&Co. shall use
reasonable good faith efforts to
borrow or otherwise acquire a
number of Shares equal to the
shortfall in the Initial Share
Delivery and to deliver such
additional Shares as soon as
reasonably practicable. The
aggregate of all Shares delivered
to Counterparty in respect of the
Transaction pursuant to this
paragraph shall be the “Initial
Shares” for purposes of “Number of
Shares to be Delivered” in the
Master Confirmation.
	 
	 	 	 	 
	Initial Share Delivery Date:

	 	[          ]
	 
	 	 	 	 
	Termination Price:

	 	USD[     ] per Share
	 
	 	 	 	 
	Additional Relevant Days:

	 	The 10 Exchange Business Days
immediately following the
Calculation Period.
	 
	 	 	 	 
	 

	 	Scheduled Ex-Dividend Date:
	 	Ordinary Dividend Amount:
	 
	 	 	 	 
	For calendar quarter ending on [insert date]

	 	[          ]
	 	USD[     ] per Share

(the “Current Dividend

Amount”)
	 
	 	 	 	 
	For calendar quarter ending on [insert date]

	 	[          ]
	 	Up to 1[     ]% of the
Current Dividend Amount
	 
	 	 	 	 
	For calendar quarter ending on [insert date]

	 	[          ]
	 	Up to 1[     ]% of the
Current Dividend Amount





3. Counterparty represents and warrants to GS&Co. that neither it nor any “affiliated purchaser”
(as defined in Rule 10b-18 under the Exchange Act) has made any purchases of blocks pursuant to the
proviso in Rule 10b-18(b)(4) under the Exchange Act during either (i) the four full calendar weeks
immediately preceding the Trade Date or (ii) during the calendar week in which the Trade Date
occurs.



4. This Supplemental Confirmation may be executed in any number of counterparts, all of which shall
constitute one and the same instrument, and any party hereto may execute this Supplemental
Confirmation by signing and delivering one or more counterparts.





A-2









 








     Counterparty hereby agrees (a) to check this Supplemental Confirmation carefully and
immediately upon receipt so that errors or discrepancies can be promptly identified and rectified
and (b) to confirm that the foregoing (in the exact form provided by GS&Co.) correctly sets forth
the terms of the agreement between GS&Co. and Counterparty with respect to the Transaction to which
this Supplemental Confirmation relates, by manually signing this Supplemental Confirmation or this
page hereof as evidence of agreement to such terms and providing the other information requested
herein and immediately returning an executed copy to Equity Derivatives Documentation Department,
facsimile No. 212-428-1980/83.



	 	 	 	 	 
	 	Yours sincerely,







GOLDMAN, SACHS & CO.

 	 
	 	By: 	 	 
	 	 	Authorized Signatory 	 
	 	 	 	 
	 



	 	 	 	 	 

	Agreed and Accepted By:	 	 
	 
	 	 	 	 
	ATMOS ENERGY CORPORATION	 	 
	 
	 	 	 	 
	By:
	 	 	 	 
	 

	 	 

Name:
	 	 
	 

	 	Title:	 	 






A-3









 






ANNEX A




COUNTERPARTY SETTLEMENT PROVISIONS



          1. The following Counterparty Settlement Provisions shall apply to the extent indicated under
the Master Confirmation:




	 	 	 

	Settlement Currency:

	 	USD
	 
	 	 
	Settlement Method Election:

	 	Applicable; provided that (i) Section 7.1 of the
Equity Definitions is hereby amended by deleting the word “Physical” in the
sixth line thereof and replacing it with the words “Net Share” and (ii) the
Electing Party may make a settlement method election only if the Electing
Party represents and warrants to GS&Co. in writing on the date it notifies
GS&Co. of its election that, as of such date, the Electing Party is not
aware of any material non-public information concerning Counterparty or the
Shares and is electing the settlement method in good faith and not as part
of a plan or scheme to evade compliance with the federal securities laws.
	 
	 	 
	Electing Party:

	 	Counterparty
	 
	 	 
	Settlement Method
Election Date:

	 	The earlier of (i) the Scheduled Termination Date and (ii) the
second Exchange Business Day immediately following the Accelerated
Termination Date (in which case the election under Section 7.1 of the Equity
Definitions shall be made no later than 10 minutes prior to the open of
trading on the Exchange on such second Exchange Business Day), as the case
may be; provided that if a Friendly Transaction Announcement occurs after
the Settlement Date, the Settlement Method Election Date for the Second
Settlement shall be the date of the Friendly Transaction Announcement.
	 
	 	 
	Default Settlement Method:

	 	Cash Settlement
	 
	 	 
	Forward Cash Settlement
Amount:

	 	The Number of Shares to be Delivered multiplied by the Settlement Price;
provided that in the case of a Second Settlement occurring after an early
termination or cancellation of the relevant Transaction pursuant to Section
6 of the Agreement or Article 12 of the Equity Definitions, the Forward Cash
Settlement Amount shall equal the lesser of (i) zero and (ii)(x) the Payment
Amount that would have been calculated for such early termination or
cancellation if clause (x)(b) in the definition of Number of Shares to be
Delivered had been replaced with “(b) the Forward Price”, as determined by
the Calculation Agent minus (y) the actual Payment Amount calculated for
such early termination or cancellation (in each case, with an amount that
would have been owed by Counterparty expressed as a negative number for
purposes of this calculation).






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	Settlement Price:

	 	The average of the VWAP Prices (or, in the case of a Second
Settlement, the Relevant Prices) for the Exchange Business Days in the
Settlement Valuation Period, subject to Valuation Disruption as specified in
the Master Confirmation or, in the case of a Second Settlement, subject to
Section 6.6(a) of the Equity Definitions as if such dates were Valuation
Dates.
	 
	 	 
	Settlement Valuation Period:

	 	A number of Scheduled Trading Days selected by
GS&Co. in its reasonable discretion, beginning on the Scheduled Trading Day
immediately following the earlier of (i) the Scheduled Termination Date or
(ii) the Exchange Business Day immediately following the Termination Date
or, in the case of a Second Settlement, the date of the Friendly Transaction
Announcement.
	 
	 	 
	Cash Settlement:

	 	If Cash Settlement is applicable, then Buyer
shall pay to Seller the absolute value of the Forward Cash Settlement Amount
on the Cash Settlement Payment Date.
	 
	 	 
	Cash Settlement
Payment Date:

	 	The date one Settlement Cycle following the last day of the
Settlement Valuation Period.
	 
	 	 
	Net Share Settlement
Procedures:

	 	If Net Share Settlement is applicable, Net Share Settlement shall be
made in accordance with paragraphs 2 through 7 below.






          2. Net Share Settlement shall be made by delivery on the Cash Settlement Payment Date of a
number of Shares satisfying the conditions set forth in paragraph 3 below (the “Registered
Settlement Shares”), or a number of Shares not satisfying such conditions (the “Unregistered
Settlement Shares”), in either case with a value equal to the absolute value of the Forward Cash
Settlement Amount, with such Shares’ value based on the value thereof to GS&Co. (which value shall,
in the case of Unregistered Settlement Shares, take into account a commercially reasonable
illiquidity discount), in each case as determined by the Calculation Agent.




          3. Counterparty may only deliver Registered Settlement Shares pursuant to paragraph 2 above
if:




          (a) a registration statement covering public resale of the Registered Settlement Shares by
GS&Co. (the “Registration Statement”) shall have been filed with the Securities and Exchange
Commission under the Securities Act and been declared or otherwise become effective on or prior to
the date of delivery, and no stop order shall be in effect with respect to the Registration
Statement; a printed prospectus relating to the Registered Settlement Shares (including any
prospectus supplement thereto, the “Prospectus”) shall have been delivered to GS&Co., in such
quantities as GS&Co. shall reasonably have requested, on or prior to the date of delivery;




          (b) the form and content of the Registration Statement and the Prospectus (including, without
limitation, any sections describing the plan of distribution) shall be reasonably satisfactory to
GS&Co.;




          (c) as of or prior to the date of delivery, GS&Co. and its agents shall have been afforded a
reasonable opportunity to conduct a due diligence investigation with respect to Counterparty
customary in scope for underwritten offerings of equity securities and the results of such
investigation are satisfactory to GS&Co., in its discretion; and







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          (d) as of the date of delivery, an agreement (the “Underwriting Agreement”) shall have been
entered into with GS&Co. in connection with the public resale of the Registered Settlement Shares
by GS&Co. substantially similar to underwriting agreements customary for underwritten offerings of
equity securities of similar size by similar companies, in form and substance reasonably
satisfactory to GS&Co., which Underwriting Agreement shall include, without limitation, provisions
substantially similar to those contained in such underwriting agreements relating, without
limitation, to the indemnification of, and contribution in connection with the liability of, GS&Co.
and its affiliates and the provision of customary opinions, accountants’ comfort letters and
lawyers’ negative assurance letters.




          4. If Counterparty delivers Unregistered Settlement Shares pursuant to paragraph 2 above:




          (a) all Unregistered Settlement Shares shall be delivered to GS&Co. (or any affiliate of
GS&Co. designated by GS&Co.) pursuant to the exemption from the registration requirements of the
Securities Act provided by Section 4(2) thereof;




          (b) as of or prior to the date of delivery, GS&Co. and any potential purchaser of any such
shares from GS&Co. (or any affiliate of GS&Co. designated by GS&Co.) identified by GS&Co. shall be
afforded a commercially reasonable opportunity to conduct a due diligence investigation with
respect to Counterparty customary in scope for private placements of equity securities of similar
size by similar companies (including, without limitation, the right to have made available to them
for inspection all financial and other records, pertinent corporate documents and other information
reasonably requested by them); provided that any such potential purchaser may be required by
Counterparty to enter into a customary nondisclosure agreement with Counterparty in respect of any
such due diligence investigation;




          (c) as of the date of delivery, Counterparty shall enter into an agreement (a “Private
Placement Agreement”) with GS&Co. (or any affiliate of GS&Co. designated by GS&Co.) in connection
with the private placement of such shares by Counterparty to GS&Co. (or any such affiliate) and the
private resale of such shares by GS&Co. (or any such affiliate), substantially similar to private
placement purchase agreements customary for private placements of equity securities of similar size
by similar companies, in form and substance commercially reasonably satisfactory to GS&Co., which
Private Placement Agreement shall include, without limitation, provisions substantially similar to
those contained in such private placement purchase agreements relating, without limitation, to the
indemnification of, and contribution in connection with the liability of, GS&Co. and its affiliates
and the provision of customary opinions, accountants’ comfort letters and lawyers’ negative
assurance letters, and shall provide for the payment by Counterparty of all fees and expenses in
connection with such resale, including the reasonable fees and actual documented out-of-pocket
expenses of counsel for GS&Co., and shall contain representations, warranties, covenants and
agreements of Counterparty reasonably necessary or advisable to establish and maintain the
availability of an exemption from the registration requirements of the Securities Act for such
resales; and




          (d) in connection with the private placement of such shares by Counterparty to GS&Co. (or any
such affiliate) and the private resale of such shares by GS&Co. (or any such affiliate),
Counterparty shall, if so requested by GS&Co., prepare, in cooperation with GS&Co., a private
placement memorandum in form and substance reasonably satisfactory to GS&Co. and customary for
private placements of equity securities of similar size by similar companies.




          5. GS&Co., itself or through an affiliate (the “Selling Agent”) or any underwriter(s), will
sell all, or such lesser portion as may be required hereunder, of the Registered Settlement Shares
or Unregistered Settlement Shares and any Makewhole Shares (as defined below) (together, the
“Settlement Shares”) delivered by Counterparty to GS&Co. pursuant to paragraph 6 below commencing
on the Cash Settlement Payment Date and continuing until the date on which the aggregate Net
Proceeds (as such term is defined below) of such sales, as determined by GS&Co., is equal to the
absolute value of the Forward Cash Settlement Amount (such date, the “Final Resale Date”). If the
proceeds of any sale(s) made by GS&Co., the Selling Agent or any underwriter(s), net of any fees
and commissions (including, without limitation, underwriting or placement fees) customary for
similar transactions under the circumstances at the time of the offering, together with carrying
charges and expenses incurred in connection with the offer and sale of the Shares (including, but
without limitation to, the covering of any






3









 







over-allotment or short position (syndicate or otherwise)) (the “Net Proceeds”) exceed the
absolute value of the Forward Cash Settlement Amount, GS&Co. will refund, in USD, such excess to
Counterparty on the date that is three (3) Currency Business Days following the Final Resale Date,
and, if any portion of the Settlement Shares remains unsold, GS&Co. shall return to Counterparty on
that date such unsold Shares.




          6. If the Calculation Agent determines that the Net Proceeds received from the sale of the
Registered Settlement Shares or Unregistered Settlement Shares or any Makewhole Shares, if any,
pursuant to this paragraph 6 are less than the absolute value of the Forward Cash
Settlement Amount (the amount in USD by which the Net Proceeds are less than the absolute value of
the Forward Cash Settlement Amount being the “Shortfall” and the date on which such
determination is made, the “Deficiency Determination Date”), Counterparty shall on the Exchange
Business Day next succeeding the Deficiency Determination Date (the “Makewhole Notice Date”)
deliver to GS&Co., through the Selling Agent, a notice of Counterparty’s election that Counterparty
shall either (i) pay an amount in cash equal to the Shortfall on the day that is one (1) Currency
Business Day after the Makewhole Notice Date, or (ii) deliver additional Shares. If Counterparty
elects to deliver to GS&Co. additional Shares, then Counterparty shall deliver additional Shares in
compliance with the terms and conditions of paragraph 3 or paragraph 4 above, as the case may be
(the “Makewhole Shares”), on the first Clearance System Business Day which is also an Exchange
Business Day following the Makewhole Notice Date in such number as the Calculation Agent reasonably
believes would have a market value on that Exchange Business Day equal to the Shortfall. Such
Makewhole Shares shall be sold by GS&Co. in accordance with the provisions above; provided that if
the sum of the Net Proceeds from the sale of the originally delivered Shares and the Net Proceeds
from the sale of any Makewhole Shares is less than the absolute value
of the Forward Cash
Settlement Amount then Counterparty shall, at its election, either make such cash payment or
deliver to GS&Co. further Makewhole Shares until such Shortfall has been reduced to zero.




          7. Notwithstanding the foregoing, in no event shall the aggregate number of Settlement Shares
and Makewhole Shares be greater than the Reserved Shares minus the amount of any Shares actually
delivered by Counterparty under any other Transaction(s) under this Master Confirmation (the result
of such calculation, the “Capped Number”). Counterparty represents and warrants (which shall be
deemed to be repeated on each day that a Transaction is outstanding) that the Capped Number is
equal to or less than the number of Shares determined according to the following formula:




A – B




	 	 	 	 	 

	 

	 	Where
	 	A = the number of authorized but unissued shares of the
Counterparty that are not reserved for future issuance on the date of the
determination of the Capped Number; and
	 
	 	 	 	 
	 

	 	 	 	B = the maximum number of Shares required to be delivered to third parties
if Counterparty elected Net Share Settlement of all transactions in the
Shares (other than Transactions in the Shares under this Master
Confirmation) with all third parties that are then currently outstanding and
unexercised.






          “Reserved Shares” means initially, 7,000,000 Shares. The Reserved Shares may be increased or
decreased in a Supplemental Confirmation.





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