exv10w8xby






Exhibit 10.8(b)




ATMOS ENERGY CORPORATION




SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN




(AN AMENDMENT AND RESTATEMENT OF THE

PERFORMANCE-BASED

SUPPLEMENTAL EXECUTIVE BENEFITS PLAN)




Effective Date: August 7, 2007




 









 






TABLE OF CONTENTS




	 	 	 	 	 	 	 	 	 
	Article
	 	 	 	Page	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE I	 	Purpose and Effective Date	 	 	1	 
	 

	 	Section 1.1.
	 	Purpose
	 	 	1	 
	 

	 	Section 1.2.
	 	Effective Date
	 	 	1	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE II	 	Definitions and Construction	 	 	1	 
	 

	 	Section 2.1.
	 	Definitions
	 	 	1	 
	 

	 	Section 2.2.
	 	Construction
	 	 	7	 
	 

	 	Section 2.3.
	 	Governing Law
	 	 	8	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE III	 	Eligibility and Participation	 	 	8	 
	 

	 	Section 3.1.
	 	Employees Eligible to Participate
	 	 	8	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IV	 	Assets Used for Benefits	 	 	8	 
	 

	 	Section 4.1.
	 	Amounts Provided by the Employer
	 	 	8	 
	 

	 	Section 4.2.
	 	Funding
	 	 	9	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE V	 	Supplemental Pension Benefits	 	 	10	 
	 

	 	Section 5.1.
	 	Eligibility for Supplemental Pension
	 	 	10	 
	 

	 	Section 5.2.
	 	Amount of Supplemental Pension
	 	 	11	 
	 

	 	Section 5.3.
	 	Form of Payment of Supplemental Pension
	 	 	12	 
	 

	 	Section 5.4.
	 	Commencement of Supplemental Pension
	 	 	14	 
	 

	 	Section 5.5.
	 	Supplemental Pensions After a Change in Control
	 	 	16	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VI	 	Disability Benefits	 	 	18	 
	 

	 	Section 6.1.
	 	Eligibility For Disability Benefit
	 	 	18	 
	 

	 	Section 6.2.
	 	Amount of Disability Benefit
	 	 	18	 
	 

	 	Section 6.3.
	 	Payment of Disability Benefit
	 	 	18	 
	 

	 	Section 6.4.
	 	Payment of Supplemental Pension to Disabled Participants
	 	 	18	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VII	 	Death Benefits	 	 	19	 
	 

	 	Section 7.1.
	 	Eligibility For Death Benefit
	 	 	19	 
	 

	 	Section 7.2.
	 	Amount of Death Benefit
	 	 	20	 
	 

	 	Section 7.3.
	 	Form of Payment of Death Benefits
	 	 	22	 
	 

	 	Section 7.4.
	 	Commencement of Death Benefits
	 	 	23	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE VIII	 	Administration	 	 	24	 
	 

	 	Section 8.1.
	 	Plan Administration
	 	 	24	 
	 

	 	Section 8.2.
	 	Powers of Plan Administrator
	 	 	24	 
	 

	 	Section 8.3.
	 	Calculation of Funding Obligations
	 	 	24	 
	 

	 	Section 8.4.
	 	Annual Statements
	 	 	25	 
	 
	 	 	 	 	 	 	 	 
	ARTICLE IX	 	Miscellaneous Provisions	 	 	25	 
	 

	 	Section 9.1.
	 	Amendment or Termination of the Plan
	 	 	25	 






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	Article
	 	 	 	Page	 
	 
	 

	 	Section 9.2.
	 	Nonguarantee of Employment
	 	 	28	 
	 

	 	Section 9.3.
	 	Nonalienation of Benefits
	 	 	28	 
	 

	 	Section 9.4.
	 	Liability
	 	 	28	 
	 

	 	Section 9.5.
	 	Participation Agreement
	 	 	29	 
	 

	 	Section 9.6.
	 	Successors to the Employer
	 	 	29	 
	 

	 	Section 9.7.
	 	Tax Withholding
	 	 	29	 






	 	 	 
	Exhibit A

	 	Participation Agreement
	 
	 	 
	Exhibit B

	 	Summary of Actuarial Assumptions for Determining Lump Sum
Distributions and Optional Annuity Forms
	 
	 	 
	Exhibit C

	 	Summary of Actuarial Assumptions and Methods for Determining
Supplemental Executive Retirement Plan Trust Annual Funding
Liabilities







ii











 





ARTICLE I




Purpose and Effective Date 




     Section 1.1. Purpose: The purpose of this Plan is to provide supplemental
retirement income, death and disability benefits to certain executive employees of Atmos Energy
Corporation. This Plan is intended to be unfunded and maintained primarily for the purpose of
providing deferred compensation for a select group of management or highly compensated employees so
as to be exempt from the requirements of Parts 2, 3 and 4 of Title I of ERISA, and shall be so
interpreted.



     Section 1.2. Effective Date: The Plan, which is effective as of August 7,
2007, is an amendment and restatement of the Performance-Based Supplemental Executive Benefits Plan
which was adopted effective August 12, 1998. The Plan shall apply generally to any participant in
the Prior Plan (as defined below) who did not terminate employment prior to August 7, 2007. Except
as otherwise provided herein, any Eligible Employee who is a participant in the Prior Plan and who
terminated employment prior to August 7, 2007, shall be entitled to those benefits, if any,
provided by the Prior Plan, as modified, where appropriate, to comply with the requirements of Code
Section 409A and the guidance issued thereunder as then in effect.



ARTICLE II




Definitions and Construction 




     Section 2.1. Definitions: The following words and phrases used in this Plan
shall have the respective meanings set forth below, unless the context in which they are used
clearly indicates a contrary meaning:




     (a) Beneficiary: The individual or individuals described in Section 7.3 of this
Plan who are receiving any benefit payments hereunder.




     (b) Board of Directors: The Board of Directors of the Employer.



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     (c) Cause: The termination of employment by the Employer upon the happening of
either (i) or (ii) as follows:




     (i) The willful and continued failure by the Participant to
substantially perform his duties with the Employer (other than any such
failure resulting from the Participant’s incapacity due to physical or
mental illness) after a written demand for substantial performance is
delivered to the Participant by the Employer that specifically identifies
the manner in which the Employer believes that the Participant has not
substantially performed his duties.




     (ii) The Participant’s willful engagement in conduct that is
demonstrably and materially injurious to the Employer, monetarily or
otherwise.




For purposes of this paragraph, no act, or failure to act, on the Participant’s part shall
be deemed “willful” if done, or omitted to be done, by the Participant in good faith and
with a reasonable belief that the action or omission was in the best interests of the
Employer. Notwithstanding the foregoing, the Participant shall not be deemed to have been
terminated for Cause unless and until there shall have been delivered to the Participant a
copy of a resolution duly adopted by the affirmative vote of not less than three-quarters
(3/4) of the entire membership of the Board of Directors of the Employer at a meeting of
such Board of Directors called and held for such purpose (after reasonable notice to the
Participant and an opportunity for the Participant, together with the Participant’s counsel,
to be heard before the Board of Directors), finding that in the good faith opinion of the
Board of Directors that the Participant was guilty of conduct set forth above in
subparagraph (i) or (ii) and specifying the particulars thereof in detail.




     (d) Change in Control:




     (i) A “Change in Control” of the Employer occurs upon a change in the
Employer’s ownership, its effective control or the ownership of a
substantial portion of its assets, as follows:




     (A) Change in Ownership. A change in ownership of the
Employer occurs on the date that any “Person” (as defined in
subparagraph (ii) below), other than (1) the Employer or any of its
subsidiaries, (2) a trustee or other fiduciary holding securities
under an employee benefit plan of the Employer or any of its
Affiliates, (3) an underwriter temporarily holding stock pursuant to
an offering of such stock, or (4) a corporation owned, directly or
indirectly, by the shareholders of the Employer in substantially the
same proportions as their ownership of the Employer’s stock,
acquires ownership of the Employer’s stock that, together with stock
held by such Person, constitutes more than 50% of the total fair
market value or total voting power of the Employer’s stock.
However, if any Person is considered to own already more than



2









 







50% of the total fair market value or total voting power of the
Employer’s stock, the acquisition of additional stock by the same
Person is not considered to be a Change of Control. In addition, if
any Person has effective control of the Employer through ownership
of 30% or more of the total voting power of the Employer’s stock, as
discussed in subparagraph (i)(B) below, the acquisition of
additional control of the Employer by the same Person is not
considered to cause a Change in Control pursuant to this
subparagraph (i)(A); or




     (B) Change in Effective Control. Even though the
Employer may not have undergone a change in ownership under
subparagraph (i)(A) above, a change in the effective control of the
Employer occurs on either of the following dates:




     (1) the date that any Person acquires (or has acquired
during the 12-month period ending on the date of the most
recent acquisition by such Person) ownership of the
Employer’s stock possessing 30 percent or more of the total
voting power of the Employer’s stock. However, if any Person
owns 30% or more of the total voting power of the Employer’s
stock, the acquisition of additional control of the Employer
by the same Person is not considered to cause a Change in
Control pursuant to this subparagraph (i)(B)(1); or




     (2) the date during any 12-month period when a majority
of members of the Board is replaced by directors whose
appointment or election is not endorsed by a majority of the
Board before the date of the appointment or election;
provided, however, that any such director shall not be
considered to be endorsed by the Board if his or her initial
assumption of office occurs as a result of an actual or
threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board; or




     (C) Change in Ownership of Substantial Portion of
Assets. A change in the ownership of a substantial portion of
the Employer’s assets occurs on the date that a Person acquires (or
has acquired during the 12-month period ending on the date of the
most recent acquisition by such Person) assets of the Employer, that
have a total gross fair market value equal to at least 40% of the
total gross fair market value of all of the Employer’s assets
immediately before such acquisition or acquisitions. However, there
is no Change in Control when there is such a transfer to an entity
that is controlled by the shareholders of the Employer



3









 







immediately after the transfer, through a transfer to (1) a
shareholder of the Employer (immediately before the asset transfer)
in exchange for or with respect to the Employer’s stock; (2) an
entity, at least 50% of the total value or voting power of the stock
of which is owned, directly or indirectly, by the Employer; (3) a
Person that owns directly or indirectly, at least 50% of the total
value or voting power of the Employer’s outstanding stock; or (4) an
entity, at least 50% of the total value or voting power of the stock
of which is owned by a Person that owns, directly or indirectly, at
least 50% of the total value or voting power of the Employer’s
outstanding stock.




     (ii) For purposes of subparagraph (i) above,




     (A) “Person” shall have the meaning given in Section 7701(a)(1)
of the Code. Person shall include more than one Person acting as a
group as defined by the Final Treasury Regulations issued under
Section 409A of the Code.




     (B) “Affiliate” shall have the meaning set forth in Rule 12b-2
promulgated under Section 12 of the Securities Exchange Act of 1934,
as amended.




     (iii) The provisions of this Section 2.1(d) shall be interpreted in
accordance with the requirements of the Final Treasury Regulations under
Code Section 409A, it being the intent of the parties that this Section
2.1(d) shall be in compliance with the requirements of said Code Section and
said Regulations.




     (e) Code: The Internal Revenue Code of 1986, as amended, or any successor
thereto.




     (f) Compensation: Except as otherwise provided in the Participant’s
Participation Agreement, the sum of (i) and (ii) as follows:




     (i) The greater of (A) the Participant’s annual base salary with the
Employer at the date of his termination of employment, or (B) the average of
the Participant’s annual base salary for the highest three (3) calendar
years (whether or not consecutive) of the Participant’s employment with the
Employer.




     (ii) The greater of (A) the Participant’s last Performance Award, or
(B) the average of the highest three (3) Performance Awards (whether or not
consecutive).




     (g) Covered Employment: The total period of employment with the Employer.



4









 






     (h) Death Benefit: The total benefit provided under this Plan upon the death
of a Participant, which benefit is calculated in this Plan on a pre-tax basis.




     (i) Disability: The termination of a Participant’s active employment with the
Employer on account of a medically determinable physical or mental impairment that can be
expected to result in death or can be expected to last for a continuous period of not less
than 12 months, for which the Participant is receiving income replacement benefits for a
period of not less than three months under an accident and health plan covering employees of
the Employer.




     (j) Disability Benefit: The monthly benefit provided under this Plan to a
Participant who suffers a Disability, which benefit is calculated in this Plan on a pre-tax
basis.




     (k) Eligible Employee: An employee of the Employer (i) who was not a
participant in the Supplemental Executive Benefits Plan (“SEBP”) as of August 12, 1998 and
is either a (A) corporate officer of the Employer selected by the Board of Directors in its
discretion to participate in the Plan, or (B) the president of an operating division of the
Employer or any other employee of the Employer selected by the Board of Directors in its
discretion to participate in the Plan; or (ii) who was a participant in the SEBP prior to
January 1, 1999, but who as of January 1, 1999 elected in writing to cease his participation
in the SEBP and become an Eligible Employee hereunder as of that date. Any employee who
elected to become an Eligible Employee pursuant to clause (ii) of the preceding sentence
shall receive credit as an Eligible Employee hereunder for the period of time he was an
eligible employee under the SEBP.




     (l) Employer: Atmos Energy Corporation.




     (m) ERISA: The Employee Retirement Income Security Act of 1974, as amended.




     (n) Group Long-Term Disability Plan: The Atmos Energy Corporation Group
Long-Term Disability Plan, as amended from time to time.




     (o) Involuntary Termination: The termination of a Participant’s participation
in the Plan due to either (i) or (ii) as follows:




     (i) Involuntary termination of the Participant’s employment by the
Employer, provided said termination constitutes a Separation from Service
and such termination is for any reason other than Cause or Disability.




     (ii) Any reason other than for Cause by the Employer prior to the
Participant’s Separation from Service with the Employer.




     (p) LTD Disability: A disability (i) as determined under the Group Long-Term
Disability Plan, as in effect from time to time, or (ii) a determination of total



5









 







disability for purposes of eligibility for Social Security disability benefits, if such
Group Long-Term Disability Plan is not then in existence, or the Participant is no longer
entitled to benefits under the Group Long-Term Disability Plan because such Participant
received a lump sum settlement of disability benefits under that plan. If a Participant’s
Disability is based on his eligibility for Social Security disability benefits, such
Participant shall not be treated as having suffered an LTD Disability unless he shall
provide the Plan Administrator, or a committee which may be established pursuant to Section
8.1, with written proof, in a form and within the time determined by the Plan Administrator,
or a committee which may be established pursuant to Section 8.1, to be satisfactory, that
such Participant is receiving Social Security disability benefits, and unless such
Participant provides written proof of the continuing receipt of Social Security disability
benefits six months after commencement of such Social Security disability benefits and every
six months thereafter, such Participant’s Disability shall be deemed to have ceased at the
time he fails to provide such written proof.




     (q) Participant: An Eligible Employee of the Employer who meets the
requirements to participate in the Plan in accordance with the provisions of Article III
hereof.




     (r) Participation Agreement: The agreement between the Employer and a
Participant described in Section 9.5 of this Plan, executed in the form attached hereto as
Exhibit A, or in such other form as the Board of Directors, in its sole discretion, may
establish from time to time.




     (s) Plan: The Atmos Energy Corporation Supplemental Executive Retirement Plan,
as set forth herein and as amended from time to time.




     (t) Pension Plan: Any defined benefit pension plan adopted, established or
maintained by the Employer, whichever is applicable, as amended from time to time. Any
amount payable to or with respect to a Participant from any group annuity contract
maintained in connection with the Pension Plan shall be deemed part of the benefit
applicable to the Participant under the Pension Plan.




     (u) Performance Awards: Except as otherwise provided in the Participant’s
Participation Agreement, any amount paid, or authorized to be paid, to a Participant while a
Participant in the Plan pursuant to any annual performance bonus or incentive compensation
plan adopted or established by the Employer, or, upon and after a Change in Control, any
amount paid, or authorized to be paid, to a Participant as a performance related cash bonus
in addition to his base cash compensation.




     (v) Plan Administrator: The Board of Directors.




     (w) Plan Year: Each twelve (12) month period beginning on January 1 and ending
on December 31.




     (x) Prior Plan: The Atmos Energy Corporation Performance-Based Supplemental
Executive Benefits Plan, as in effect at any time prior to the Effective Date



6









 







and, where applicable, operated in accordance with the interim guidance issued under
Code Section 409A.




     (y) Retired Participant: A Participant under this Plan who receives benefits
upon Retirement.




     (z) Retirement or Retire: A Participant’s voluntary termination from
employment with the Employer that constitutes a Separation from Service after he is vested
in his retirement benefits under the Pension Plan and has met the age and service
requirements to be eligible to commence an early retirement benefit under the Pension Plan.




     (aa) Separation from Service: A Participant’s termination from employment with
the Employer that constitutes a “separation from service” as defined in Section 1.409A-1(h)
of the Final Treasury Regulations under Code Section 409A, or any successor provision
thereto.




     (bb) Supplemental Pension: A Participant’s pension benefit provided under this
Plan, which benefit is calculated in this Plan on a pre-tax basis.




     (cc) The expressions listed below shall have the meanings stated in the subparagraphs
hereof respectively indicated:



	 	 	 
	“Affiliate”

	 	subparagraph 2.1(d)(ii)(B)
	 
	 	 
	“Dependent Death Benefit”

	 	subparagraph 7.2(a)(iii)
	 
	 	 
	“Lump Sum Death Benefit”

	 	subparagraph 7.2(a)(i)
	 
	 	 
	“Monthly Death Benefit”

	 	subparagraph 7.2(a)(ii)
	 
	 	 
	“Original Payment Date”

	 	subparagraph 5.4(c)
	 
	 	 
	“Person”

	 	subparagraph 2.1(d)(ii)(A)
	 
	 	 
	“SEBP”

	 	subparagraph 2.1(k)
	 
	 	 
	“Specified Employee”

	 	subparagraph 5.4(c)






     Section 2.2. Construction: The masculine gender, whenever appearing in this
Plan, shall be deemed to include the feminine gender; the singular may include the plural; and vice
versa, unless the context clearly indicates to the contrary.



7









 





     Section 2.3. Governing Law: This Plan shall be construed in accordance with
and governed by the laws of the State of Texas, except to the extent otherwise preempted by ERISA
or any other Federal law.



ARTICLE III




Eligibility and Participation 




     Section 3.1. Employees Eligible to Participate: Each participant in the
Prior Plan who terminated employment prior to August 7, 2007, shall remain a participant in the
Prior Plan; each Participant who is an Eligible Employee on August 7, 2007 shall remain a
Participant and shall continue to participate in this Plan; and any other Eligible Employee who
becomes a Participant shall participate in this Plan, provided he complies with the provisions of
Section 9.5 hereof. Any Participant who ceases being an Eligible Employee during his employment
with the Employer shall immediately cease active participation in this Plan and shall no longer be
a Participant, except as otherwise set forth herein.



ARTICLE IV




Assets Used for Benefits 




     Section 4.1. Amounts Provided by the Employer: Benefits payable under this
Plan shall constitute general obligations of the Employer in accordance with the terms of this
Plan. The Employer may, in its sole discretion, establish a trust or other funding arrangement
that is subject to the claims of the Employer’s general unsecured creditors for the purpose of
funding a Participant’s accrued benefit payable under this Plan. Any such trust or other funding
arrangement may also provide for the distribution to the Participant of an amount equal to any
federal, state, local or other taxes that are incurred by the Participant in the event the
establishment of such trust or other funding arrangement constitutes the constructive receipt by



8









 







the Participant of any benefits payable hereunder prior to the actual receipt of such
benefits. The Employer shall make appropriate adjustments to the amount of the Participant’s
Supplemental Pension in order to reflect the effect upon such Supplemental Pension of the
distribution described in the foregoing sentence. The Employer also may, but shall not be
obligated to, purchase one or more life insurance policies or contracts to provide for the payment
of the Death Benefits. Any such policies or contracts purchased hereunder shall remain a general
asset of the Employer or of any trust established hereunder.



     Section 4.2. Funding: Not later than the time each Participant who elected
to receive his Supplemental Pension in the form of a monthly annuity provided for in Section
5.3(a)(i), (ii) or (iv) Retires or becomes eligible to receive an unreduced Supplemental Pension
under this Plan, whichever occurs first, the Employer shall contribute to a trust or other funding
arrangement an amount necessary to fund 100% of the then-present value of such Participant’s
accrued Supplemental Pension. The amount required to be funded by this Section 4.2 shall be
calculated in accordance with Section 8.3 hereof. Each Participant who elected or is otherwise
entitled to receive his Supplemental Pension in a lump sum payment shall not, except as provided
below, have any amount contributed to a trust or other funding arrangement on his behalf pursuant
to this Section 4.2. Notwithstanding the foregoing, immediately upon a Change in Control, the
Employer shall contribute to a trust or other funding arrangement an amount necessary to fund 100%
of the then-present value of all Supplemental Pension benefits (vested and unvested) payable
hereunder to each Participant and Retired Participant, regardless of whether any such person is
then eligible to Retire or to receive an unreduced Supplemental Pension and regardless of the form
in which such Supplemental Pension is to be paid. The Employer shall review the funding status of
each such trust or other funding arrangement



9









 







required to be established under this Section 4.2 on an annual basis and shall make such
contributions thereto as may be required to maintain the value of the assets thereof at no less
than 100% of the then-present value of all such Supplemental Pension benefits.



ARTICLE V




Supplemental Pension Benefits 




     Section 5.1. Eligibility for Supplemental Pension:




     (a) Upon Retirement. Except as otherwise provided elsewhere in this Plan or in
a Participation Agreement, a Participant who has been an Eligible Employee for at least two
years and Retires shall be entitled to receive a Supplemental Pension.




     (b) Upon Involuntary Termination Prior to a Change in Control. A Participant
who suffers an Involuntary Termination prior to a Change in Control shall be entitled to
receive a Supplemental Pension, subject to the provisions of Section 5.1(c) of this Plan, so
long as he is vested in his retirement benefits under the Pension Plan at the time of his
Involuntary Termination and has been an Eligible Employee for at least two years prior to
the Involuntary Termination.




     (c) Upon Voluntary Termination Prior to a Change in Control or Termination For
Cause. A Participant who voluntarily resigns from employment with the Employer prior to
being eligible for Retirement and prior to a Change in Control or who is terminated from
employment with the Employer for Cause shall not be entitled to receive a Supplemental
Pension.




     (d) Upon Disability. A Participant who suffers a Disability shall be entitled
to a Supplemental Pension as provided in Section 6.4.



10









 





     Section 5.2. Amount of Supplemental Pension :




     (a) Upon Retirement. Except as otherwise provided in the Participant’s
Participation Agreement, the Supplemental Pension payable to a Participant who Retires, and
who has been an Eligible Employee for at least two years shall, unless reduced as provided
in subparagraph (b) below, and based on the form of payment specified in Section 5.3(a)(i)
or (ii), depending on the marital status of the Participant at Retirement, equal (i)
minus (ii) as follows:




     (i) One-twelfth (1/12th) of sixty percent (60%) of the
Participant’s Compensation, reduced if the Participant has fewer than ten
full (10) years of Covered Employment by one-tenth (1/10th) for each full
year of his Covered Employment less than ten (10) (no credit shall be given
for any partial year of Covered Employment;




     (ii) The monthly amount of pension payable to the Participant under the
Pension Plan as of the date that his Supplemental Pension commences,
assuming payment in the automatic form applicable to him under the Pension
Plan.




     (b) Reduction for Early Commencement of Supplemental Pensions. If a
Participant’s Supplemental Pension commences, without regard to Section 5.4(c) before the
Participant attains age 62, the amount determined under subparagraph (a)(i) above shall,
unless otherwise provided in a Participation Agreement, be reduced by 2% per year for the
first two (2) years (or fractional years thereof, based on full months) that such date of
commencement precedes age 62, and by 4% per year for the next five (5) years (or fractional
years thereof, based on full months) that such date of commencement precedes age 60.




     (c) Upon Involuntary Termination Prior to a Change in Control. The
Supplemental Pension payable to a Participant who suffers an Involuntary Termination prior
to a Change in Control shall be determined in accordance with subparagraph (a)



11









 







above, but, except as otherwise provided in the Participant’s Participation Agreement,
for purposes of subparagraph (a)(i), shall be based upon his Compensation and full years of
Covered Employment calculated as of the date of his Involuntary Termination.



     Section 5.3. Form of Payment of Supplemental Pension:




     (a) Participants Prior to October 3, 2007. Each Participant who was an
Eligible Employee on October 2, 2007, shall be paid or commence his Supplemental Pension in
accordance with the following provisions:




     (i) Married Participants. Except as otherwise provided in the
Participant’s Participation Agreement or in subparagraph (iii) or (iv)
below, if the Participant is married when his Supplemental Pension commences
or is scheduled to commence pursuant to Section 5.4(a), without regard to
Section 5.4(c), it shall be paid in the form of a joint and 50% survivor
annuity, with the Participant’s spouse on the date payment commences or is
scheduled to commence pursuant to Section 5.4(a) without regard to Section
5.4(c), as the joint annuitant. If a Participant’s spouse dies between the
date the Supplemental Pension is scheduled to commence and the date the
Supplemental Pension actually commences, such Participant shall be treated
as unmarried for purposes of this subparagraph (a)(i).




     (ii) Unmarried Participants. Except as otherwise provided in
the Participant’s Participation Agreement or in subparagraph (iii) or (iv)
below, if the Participant is not married when his Supplemental Pension
commences or is scheduled to commence pursuant to Section 5.4(a), without
regard to Section 5.4(c), it shall be paid in the form of a life annuity,
payable monthly, but guaranteed for a period of 120 months, payable to the
Participant or the Participant’s named Beneficiary. If an unmarried
Participant becomes married between the date the Supplemental Pension is
scheduled to commence and the date the Supplemental Pension actually
commences, such Participant shall be treated as married for purposes of this
subparagraph (a)(ii).




     (iii) 2007 Transition Election for Certain Participants.
Notwithstanding any provisions of the Plan to the contrary, each Participant
who has not incurred a Separation from Service and is still an Eligible
Employee on October 3, 2007 shall be given an election to change his or her
form of payment from the form set forth in subparagraph (i) or (ii) above,
as the case may be, to a lump sum payment equal to the actuarial equivalent
lump sum value of the Supplemental Pension



12









 







provided for in subparagraph (i) or (ii) above, or to one of the
actuarial equivalent alternative annuity forms provided for in subparagraph
(iv) below. The actuarial equivalent lump sum value and the actuarial
equivalent alternative annuity forms of Supplemental Pension payments shall
be determined in accordance with the actuarial assumptions set forth in
Exhibit B hereto. Any election pursuant to this subparagraph (iii) shall
not permit benefits scheduled to be paid in 2007 to be deferred beyond 2007
and shall not permit benefits scheduled to be paid after 2007 to be
accelerated and paid in 2007. Any election pursuant to this subparagraph
(iii) may be changed at any time on and after January 1, 2008 and prior to
December 31, 2008, so long as any such election does not permit benefits
scheduled to be paid in 2008 to be deferred beyond 2008 and does not permit
benefits scheduled to be paid after 2008 to be accelerated and paid in 2008.
Elections pursuant to this subparagraph (iii) shall be made in accordance
with the transition relief regarding changing the time and form of payment
on or before December 31, 2008, provided for in the interim guidance issued
under Code Section 409A.




     (iv) Change in Annuity Form of Supplemental Pension. Any
Participant who has elected, pursuant to subparagraph (iii) above, to
receive his Supplemental Pension in an annuity form as provided for in
subparagraph (i) or (ii) above or this subparagraph (iv) may elect, by
submitting a completed election form to the Plan Administrator, or a
committee which may be established pursuant to Section 8.1, at least 30 days
prior to the date payments under the elected annuity form are to commence or
are scheduled to commence pursuant to Section 5.4(a) without regard to
Section 5.4(c), to convert the elected annuity form into any of the
following actuarially equivalent annuity forms which are otherwise
permissible or the annuity form provided for in subparagraph (i) or (ii)
above, as applicable:




     (A) Life Annuity, with a monthly amount payable for the
life of the Participant;




     (B) Joint and Survivor Annuity, with a monthly amount
payable for the life of the Participant, and an amount payable upon
the Participant’s death to the Participant’s surviving spouse which
is equal to 100%, 75% or 66.67% of the monthly amount which was
payable to the Participant;




     (C) Life Annuity with Guaranteed Payment Period, with a
monthly amount payable for the life of the Participant, and if the
Participant dies before either 60 or 120 (as selected by the
Participant) monthly payments are made, the remaining monthly
payments for the selected period will be paid to the Participant’s
surviving spouse or other designated Beneficiary.



13









 






If no election pursuant to this subparagraph (iv) is on file when benefits
commence or are scheduled to commence pursuant to Section 5.4(a), without
regard to Section 5.4(c) below for a Participant for whom this subparagraph
(iv) applies, benefits will be paid in the form applicable under
subparagraph (i) or (ii) above, as the case may be. The actuarial
equivalents provided for in this subparagraph (a) will be determined on the
basis of the actuarial assumptions used for determining actuarial equivalent
optional forms of annuities as set forth in Exhibit B hereto.




     (b) Participants on and after October 3, 2007. Each Participant who becomes a
Participant on or after October 3, 2007, shall be paid his Supplemental Pension in a lump
sum payment equal to the actuarial equivalent lump sum value of the Supplemental Pension
provided for in subparagraph (a)(i) or (ii) above, based on his marital status when his
Supplemental Pension commences or is scheduled to commence pursuant to Section 5.4(a)(ii)
without regard to Section 5.4(c). The actuarial equivalents provided for in this
subparagraph (b) will be determined on the basis of the actuarial assumptions used for
determining actuarial equivalent lump sums as set forth in Exhibit B hereto.



     Section 5.4. Commencement of Supplemental Pension:




     (a) Upon Retirement.




     (i) Except as otherwise provided in subparagraph (c) below, the
Supplemental Pension of a Participant, other than a Participant to whom
Section 5.3(b) applies, who Retires prior to January 1, 2009, shall be paid
or commence at the time he begins receiving retirement benefits from the
Pension Plan. However, (A) if a Participant who made the election in 2007
to receive a lump sum payment in accordance with Section 5.3(a)(iii) above
becomes entitled to receive a lump sum payment in 2007, such lump sum cannot
be paid prior to January 1, 2008, and except as otherwise provided in
subparagraph (c) below, such Participant shall receive the monthly
Supplemental Pension annuity payments otherwise provided for in Section
5.3(a)(i) or (ii), as the case may be, until January 1, 2008, at which time
a lump sum payment of the actuarial equivalent lump sum value of the
remaining monthly annuity payments shall be paid to such Participant on or
prior to January 15, 2008, and (B) if a Participant who changed his 2007
election in 2008 (1) to receive a lump sum payment in accordance with
Section 5.3(c) hereof in lieu of the monthly Supplemental Pension annuity
payments provided for in Section



14









 







5.3(a)(i), (ii) or (iv), as the case may be, which such Participant
elected in 2007, and such Participant becomes entitled to receive a lump sum
payment in 2008, such lump sum cannot be paid prior to January 1, 2009, and
except as otherwise provided in subparagraph (c) below, such Participant
shall receive the monthly Supplemental Pension annuity payments otherwise
elected in 2007 until January 1, 2009, at which time a lump sum payment of
the actuarial equivalent lump sum value of the remaining monthly annuity
payments shall be paid to such Participant on or prior to January 15, 2009,
or (2) to receive monthly annuity payments in lieu of a lump sum payment
which such Participant elected in 2007, and such Participant becomes
entitled to receive benefits under this Plan in 2008, such 2008 election
shall not be valid, and such Participant shall receive the lump sum payment
elected in 2007.




     (ii) Except as otherwise provided in subparagraph (c) below, (A) the
Supplemental Pension of a Participant, other than a Participant to whom
Section 5.3(b) applies, who Retires on or after January 1, 2009, and (B) the
Supplemental Pension of a Participant to whom Section 5.3(b) applies who
Retires at any time shall be paid or commence on the first day of the month
following the month in which such Participant Retires.




     (b) Upon Involuntary Termination Prior to a Change in Control. The
Supplemental Pension of a Participant who suffers an Involuntary Termination prior to a
Change in Control shall, except as otherwise provided in subparagraph (c) below, be paid or
commence at the later of (i) the first day of the month following the month in which such
Participant incurs a Separation from Service with the Employer, or (ii) the first day of the
month following the month in which such Participant attains age 55.




     (c) Six Months Delay in Payment. Notwithstanding the foregoing provisions of
this Section 5.4, Section 5.5(c) and Section 9.1(c), from and after January 1, 2009, if a
Participant who is entitled to payments under said applicable Section is a “specified
employee,” as defined in § 1.409A-1(i) of the Final Regulations under Code Section 409A, and
the Supplemental Pension would otherwise be paid or commence (the “Original Payment Date”)
before a date which is at least six (6) months following the date of the Participant’s
Separation from Service, the Supplemental Pension shall be paid



15









 







or commence on the date which is six (6) months following the date of the Participant’s
Separation from Service (or, if earlier, the date of death of the Participant), provided the
six (6) months delay requirements of Code Section 409A otherwise apply to the payments under
said applicable Section. All monthly annuity payments which are delayed for six (6) months
shall be paid in a lump sum on the date specified in this subparagraph (c) for commencement
of such payments. All lump sum or monthly annuity payments which are delayed as provided in
this subparagraph (c) shall accrue interest for the period from the Original Payment Date
(or, in the case of the monthly annuity payments the first day of the month in which such
payment was to be made) until the date such payment is actually made. Said interest shall
be equal to the applicable segment rates as defined in Code Section 417(e)(3)(D), without
regard to the phase-in percentages specified in Code Section 417(e)(3)(D)(iii), for the
November preceding the first day of the calendar year in which the participant retires or
otherwise becomes entitled to payments without regard to this Section 5.4(c).



     Section 5.5. Supplemental Pensions After a Change in Control:




     (a) Eligibility For Supplemental Pension. Notwithstanding anything to the
contrary in this Plan, a Participant shall be entitled to a Supplemental Pension, regardless
of whether he has been an Eligible Employee for at least two years or is vested in his
retirement benefits under the Pension Plan, if following a Change in Control of the Employer
which occurs at a time when he is an Eligible Employee, either (i) or (ii) occurs:




     (i) The Participant incurs a Separation from Service




     (A) on account of LTD Disability; or



16









 






     (B) involuntarily by the Employer for any reason other than for
Cause.




     (ii) The Participant’s participation in the Plan is terminated by the
Employer for any reason other than for Cause prior to his Separation from
Service with the Employer.




In order for the provisions of this Section 5.5 to apply, the involuntary Separation from
Service referred to in subparagraph (i)(A) above or the termination of participation
referred to in subparagraph (ii) above must occur within three (3) years after the Change in
Control.




     If a Participant incurs a Separation from Service involuntarily by the Employer for any
reason other than for Cause, or his participation in the Plan is terminated by the Employer
for any reason other than for Cause, prior to a Change in Control (whether or not a Change
in Control ever occurs) and such Separation either (A) was at the request or direction of a
person who has entered into an agreement with the Employer, the consummation of which would
constitute a Change in Control, or (B) was otherwise in connection with or in anticipation
of a Change in Control (whether or not a Change in Control ever occurs), then such
Participant’s Separation from Service or termination of participation shall be deemed to
have followed a Change in Control of the Employer, and such Participant shall be one who is
described in this subparagraph (a).




     (b) Amount of Supplemental Pension. The Supplemental Pension payable to a
Participant described in subparagraph (a) above shall be calculated in the same manner as
set forth in Section 9.1(c) for benefits payable in the event of a termination of the Plan,
but based on his Compensation as of the date of his Separation from Service or the date his
participation in the Plan is terminated, whichever is applicable.



17









 






     (c) Commencement of Supplemental Pension. Except as otherwise provided in
Section 5.4(c), the Supplemental Pension payable to a Participant described in subparagraph
(a) above shall be paid or commence on the later of (i) the first day of the month following
the month in which he incurs a Separation from Service, or (ii) the first day of the month
following the month in which such Participant attains age 55.



ARTICLE VI




Disability Benefits 




     Section 6.1. Eligibility For Disability Benefit:  A Participant who is an
Eligible Employee and otherwise is actively participating in the Plan shall be entitled to a
Disability Benefit if he suffers a Disability and an LTD Disability prior to his Retirement.



     Section 6.2. Amount of Disability Benefit:  The Disability Benefit payable to
an eligible Participant shall equal (a) minus (b) as follows:




     (a) One-twelfth (1/12th) of sixty percent (60%) of the Participant’s
Compensation calculated as of the date of his Disability.




     (b) The total monthly amount of disability benefit payable to the Participant
under the Group Long-Term Disability Plan (before any offsets) as of the date that
his employment terminates due to Disability.



     Section 6.3. Payment of Disability Benefit:  A Participant’s Disability
Benefit shall be paid commencing on the 181st day following the later of the date of his
Disability or the date of his LTD Disability, and shall continue for so long as benefits are paid
due to an LTD Disability.



     Section 6.4. Payment of Supplemental Pension to Disabled Participants:




     (a) Upon Reaching Age 65. If a Participant who has suffered an LTD Disability
reaches age 65 while still receiving a Disability Benefit, such Participant shall be
entitled to a Supplemental Pension, to be paid or to commence on the first day of the month
following the month in which such Participant attains age 65, regardless of



18









 







whether the Participant has been an Eligible Employee for at least two years. The
Supplemental Pension payable to such Participant shall be in the form provided in Section
5.3 and determined in accordance with Section 5.2(a). Upon commencement of a Participant’s
Supplemental Pension under this Section 6.4(a), such Participant’s Disability Benefit under
Section 6.3 hereof shall cease.




     (b) Prior to Reaching Age 65. Notwithstanding the provisions of subparagraph
(a) above, a Participant receiving a Disability Benefit shall receive a Supplemental Pension
to be paid or to commence on the first day of the month following the month in which occurs
the later of (i) such Participant’s 62nd birthday, or (ii) such Participant’s
entitlement to an unreduced Supplemental Pension under Section 5.2(a)(i), if such month
occurs prior to such Participant’s 65th birthday. If a Participant becomes
entitled to a Supplemental Pension pursuant to this subparagraph (b), the Participant’s
Disability Benefits shall cease, and such Supplemental Pension shall be in the form provided
for in Section 5.3, determined in accordance with Sections 5.2(a) and (b) and shall be based
on the Participant’s Compensation as of the date that such individual suffered a Disability.



ARTICLE VII




Death Benefits 




     Section 7.1. Eligibility For Death Benefit:  A Participant’s Beneficiary
shall be entitled to a Death Benefit if the Participant meets the requirements of either (a), (b)
or (c) as follows:




     (a) He dies before his employment with the Employer terminates or while
receiving a Disability Benefit under this Plan.




     (b) He Retires but dies before the commencement of his Supplemental Pension.




19











 






     (c) He is entitled to a Supplemental Pension pursuant to the provisions of
Section 5.1(b) or Section 5.5(a) of this Plan, but dies before the commencement of
his Supplemental Pension.



     Section 7.2. Amount of Death Benefit:




     (a) In-Service Death. In the case of a Participant who dies as provided in
Section 7.1(a), the Death Benefit will be the total of the following (i), (ii) and (iii):




     (i) A lump sum payment equal to two times the Participant’s
Compensation minus any amount payable under the Employer’s Group Basic Life
Insurance Plan (the “Lump Sum Death Benefit”).




     (ii) A monthly benefit equal to one-twelfth of an amount equal to fifty
percent of the Participant’s Compensation at the time of his death (the
“Monthly Death Benefit”).




     (iii) If the Participant leaves a child or children to whom payments
are to be made under Section 7.3 hereof, a monthly benefit equal to
one-twelfth of an amount equal to twenty-five percent (25%) of the
Participant’s Compensation at the time of his death (the “Dependent Death
Benefit”).




     (b) Post-Retirement Death. In the case of a Participant who dies as provided
in Section 7.1(b), a Death Benefit will be paid as follows:




     (i) If such Participant was entitled to receive his Supplemental
Pension in a form provided for in Section 5.3(a)(i), (ii) or (iv), a Death
Benefit will be paid to the Beneficiary who is so entitled at the time of
his death. If such Participant Retires either (A) prior to January 1, 2009,
or (B) on or after January 1, 2009 and the six months delay provision of
Section 5.4(c) does not apply, such Death Benefit shall be paid in the
amount that would have been applicable had the Participant’s Supplemental
Pension commenced in the month of his death. If such Participant Retires on
or after January 1, 2009 and the six months delay provision of Section
5.4(c) applies, such Death Benefit shall consist of the following: (C) a
lump sum payment will be paid to the Beneficiary entitled to receive the
Death Benefit pursuant to Section 7.3(a) below in an amount equal to the sum
of the monthly annuity payments which would have been payable to the
Participant for the months between the month in which his Supplemental
Pension would have commenced without regard to Section 5.4(c) and the month
in which he died, plus interest through the date of his death as provided
for in Section 5.4(c), and (D) the monthly survivor benefit will be paid to
the Beneficiary who would have been so entitled on the basis of the form of
payment that would have applied to



20









 







him pursuant to Section 5.3(a)(i), (ii) or (iv) had the Participant’s
Supplemental Pension commenced in the month of his death.




     (ii) If such Participant was entitled to receive his Supplemental
Pension in the form of a lump sum payment pursuant to Section 5.3(a)(iii) or
Section 5.3(b), a Death Benefit will be paid to the Beneficiary entitled to
receive the Death Benefit pursuant to Section 7.3(a) below. The amount of
such Death Benefit shall be equal to the lump sum amount such Participant
would have been entitled to receive had the Participant’s Supplemental
Pension been paid in the month of his death, plus interest, if applicable,
through the date of his death pursuant to Section 5.4(c) as if the date of
his death were the end of the six months delay period.




     (c) Deferred Retirement Death. In the case of a Participant who dies as
provided in Section 7.1(c), a Death Benefit will be paid as provided in (i) or (ii) as
follows:




     (i) In the case of a Participant who dies prior to reaching age 55, a
Death Benefit will be paid to the Beneficiary who would have been so
entitled at the time of his death and in the amount determined as follows:




     (A) If such Participant was entitled to receive his
Supplemental Pension in the form provided for in Section 5.3(a)(i),
(ii) or (iv), such Death Benefit shall be paid in the form
applicable under section 5.3(a)(i) or (ii), based on his marital
status at the time of his death, to the Beneficiary who would have
been so entitled at the time of his death on the basis of that form,
and in the amount that would have been applicable had the
Participant lived to age 55, commenced his Supplemental Pension in
the month immediately following the month in which he reached age 55
and died immediately after his Supplemental Pension commenced, as
reduced actuarially, on the basis of the Beneficiary’s age, to
reflect commencement of such Death Benefit pursuant to Section
7.4(b) prior to such Participant reaching age 55.




     (B) If such Participant was entitled to receive his
Supplemental Pension in the form of a lump sum payment, such Death
Benefit shall be paid as provided in Section 7.3(a) in a lump sum
amount equal to the actuarial equivalent lump sum value of the
survivor benefit that would have been paid under the form applicable
under Section 5.3(a)(i) or (ii) had the Participant lived to age 55,
commenced his Supplemental Pension in the month immediately
following the month in which he reached age 55 and died immediately
after his Supplemental Pension commenced, as



21









 







reduced actuarially, on the basis of the Beneficiary’s age, to
reflect commencement of such Death Benefit pursuant to Section
7.4(b) prior to such Participant reaching age 55.




     (ii) In the case of a Participant who dies after reaching age 55, a
Death Benefit will be paid to the Beneficiary in the amount provided for in
Section 7.2(b) above.




     (iii) For purposes of this Section 7.2(c), the actuarial equivalent
lump sum value and the actuarial equivalent alternative annuity forms of
Supplemental Pension payments shall be determined in accordance with the
actuarial assumptions set forth in Exhibit C hereto.



     Section 7.3. Form of Payment of Death Benefits:




     (a) Lump Sum and Monthly Death Benefits. The Lump Sum Death Benefit, the
Monthly Death Benefit, the Death Benefit provided for in Section 7.2(b)(i)(C), the Death
Benefit provided for in Section 7.2(b)(ii) and the Death Benefit provided for in Section
7.2(c)(i)(B) are payable to the Participant’s designated Beneficiary. In the event that no
Beneficiary has been effectively designated as provided with respect to the Death Benefits
described in the preceding sentence or the guaranteed monthly payments for the selected
period under the annuity form described in Sections 5.3(a)(ii) and 5.3(a)(iv)(C), the
Participant’s surviving spouse shall be deemed the designated Beneficiary, or if the
Participant has no surviving spouse, his children, if any, per stirpes, and if none, the
estate of the Participant shall be deemed the designated Beneficiary. If a Beneficiary
entitled to receive a Death Benefit that is a survivor annuity payment hereunder (other than
the guaranteed monthly payments for the selected period under the annuity form described in
Sections 5.3(a)(ii) and 5.3(a)(iv)(C)) dies before commencement of payment of that Death
Benefit, then that Death Benefit shall not be payable from the Plan. The Monthly Death
Benefit shall be a single life annuity, if the Participant’s surviving spouse



22









 







is the designated Beneficiary, and shall be a 120-month term certain annuity, if
someone other than the surviving spouse is the Participant’s designated Beneficiary.




     (b) Dependent Death Benefit. The Dependent Death Benefit is payable to the
Participant’s dependent children in equal shares until there cease to be any dependent
children remaining. As each child loses his or her dependent status, the child’s share of
the Dependent Death Benefit shall be paid to the remaining dependent child or children in
equal shares. A child of the Participant is deemed to be a dependent until the child
reaches age eighteen or, if a full-time student (i.e. enrolled in twelve hours or more of
courses of higher education), age 25, or until the child’s death if earlier. At the
discretion of the Plan Administrator, any dependent child’s share of the Dependent Death
Benefit may be paid to the Participant’s surviving spouse or other guardian of such child if
applicable and shall constitute full settlement of the Plan’s obligation to such child with
respect to such payment. If the Participant’s surviving spouse is the designated
Beneficiary for the Monthly Death Benefit and dies while receiving the Monthly Death Benefit
and while any dependent child or children of the Participant remain, then the Monthly Death
Benefit being paid to the surviving spouse shall be added to the Dependent Death Benefit and
shall be payable in equal shares to the dependent children in the same manner and for the
same time period as the Dependent Death Benefit.



     Section 7.4. Commencement of Death Benefits:




     (a) The Death Benefits payable pursuant to Section 7.2(a) shall be paid, with respect
to the Lump Sum Death Benefit, or shall commence, with respect to the Monthly Death Benefit
and the Dependent Death Benefit, as of the first day of the month next following the
Participant’s death.



23









 






     (b) The Death Benefits payable pursuant to Sections 7.2(b) and (c) shall commence as of
the first day of the month next following the Participant’s death.



ARTICLE VIII




Administration




     Section 8.1. Plan Administration: The Plan shall be administered by the Board
of Directors. The Board of Directors may, in its sole discretion, establish a committee to carry
out the day-to-day administration of the Plan and may delegate any portion of its authority and
responsibilities as Plan Administrator to such committee.



     Section 8.2. Powers of Plan Administrator: The Plan Administrator shall have
the discretionary power and authority to interpret and administer the Plan according to its terms,
including the power to construe and interpret the Plan, to supply any omissions therein, to
reconcile and correct any errors or inconsistencies, to decide any questions in the administration
and application of the Plan, and to make equitable adjustments for any mistakes or errors in the
administration and application of the Plan. The Plan Administrator shall have such additional
powers as may be necessary to discharge its duties and responsibilities hereunder.



     Section 8.3. Calculation of Funding Obligations: The Employer shall calculate
its funding obligations hereunder solely by using the actuarial assumptions and methodology set
forth in Exhibit C hereto. In its discretion, at any time prior to a Change in Control of the
Employer, the Employer may amend Exhibit C to change such actuarial assumptions and methodology,
provided that such changes are communicated promptly in writing to all Participants, Retired
Participants, and Beneficiaries. Upon and after a Change in Control of the Employer, the actuarial
assumptions and methodology set forth in Exhibit C may be changed with respect to any Participant,
Retired Participant, or Beneficiary who was a Participant, Retired



24









 







Participant, or Beneficiary at the time of such Change in Control, only with the written
consent of such affected Participant, Retired Participant, or Beneficiary.



     Section 8.4. Annual Statements: As soon as practicable after the end of each
Plan Year, the Employer shall deliver to each Participant, Retired Participant, and Beneficiary a
statement containing (a) the present value of the Employer’s future benefit obligations to the
Participant, Retired Participant, or Beneficiary; (b) the actuarial assumptions used to calculate
the present value of the Employer’s future benefit obligations hereunder; and (c) the aggregate
current value of the assets, if any, held in a trust or other funding arrangement which are
sufficient to fund 100% of the then-present value of the accrued Supplemental Pension for any
Participant, Retired Participant, or Beneficiary for whom benefits are paid in the form of an
annuity and for whom assets are required to be held in trust.



ARTICLE IX




Miscellaneous Provisions




     Section 9.1. Amendment or Termination of the Plan:




     (a) In General. Subject to the remaining provisions of this Section 9.1, the
Board of Directors may by resolution, in its absolute discretion, from time to time, amend,
suspend, or terminate any or all of the provisions of the Plan; provided, however, that no
amendment, suspension, or termination may apply so as to decrease the payment to any
Participant or Beneficiary of any benefit under the Plan that he accrued prior to the
effective date of such amendment, suspension, or termination, nor shall such amendment,
suspension, or termination change the time and form of payment to be made under the
provisions of the Plan as in effect before such amendment, suspension, or termination,



25









 







except as otherwise permitted or required under Code Section 409A and the Treasury
regulations issued thereunder.




     (b) Amendment That Decreases Benefits. If the Board of Directors amends the
Plan and such amendment results in a decrease in the Supplemental Pension, Death Benefits or
Disability Benefit that otherwise would be paid under this Plan but for the amendment,
except as provided in subparagraphs (iii) and (iv) below, the Participant’s Supplemental
Pension, Death Benefits or Disability Benefit shall equal the sum of (i) and (ii) as
follows:




     (i) The amount derived by multiplying the Participant’s benefit
calculated pursuant to the terms of the Plan in effect immediately prior to
the amendment and based upon the Participant’s Compensation used to
calculate the appropriate benefit by the following fraction: The numerator
is the number of full years of Covered Employment the Participant has prior
to the effective date of the amendment, and the denominator is the total
number of full years of Covered Employment the Participant has; however,
neither the numerator nor the denominator shall exceed 10.




     (ii) The amount derived by multiplying the Participant’s benefit as
calculated pursuant to the terms of the Plan as amended based upon the
Participant’s Compensation used to calculate the appropriate benefit by the
following fraction: The numerator is the number of full years that the
Participant participated in the Pension Plan after the effective date of the
amendment (but this number when added to the numerator of the fraction in
subparagraph (i) above, shall not exceed 10) and the denominator is the
total number of full years of Covered Employment the Participant has (but
this number shall not exceed 10).




     (iii) Notwithstanding the foregoing provisions of this subparagraph
(b), if the Plan is so amended before a Participant is vested in his
retirement benefits under the Pension Plan, the Participant’s Supplemental
Pension, Death Benefit or Disability Benefit shall be calculated solely in
accordance with the terms of the Plan as amended.




     (iv) Notwithstanding the foregoing provisions of this subparagraph (b),
if any such amendment occurs upon or after a Change in Control, the
Participant’s Supplemental Pension shall at least equal the benefits which
would be paid under subparagraph (c) below if there was a termination of the
Plan at the time of such amendment.



26









 





     Notwithstanding the foregoing provisions of this subparagraph (b), the Amendment and
Restatement of the Plan effective August 7, 2007 shall not for any purposes be treated as resulting
in a decrease in the Supplemental Pension, Death Benefit or Disability Benefit otherwise payable
under this Plan.




     (c) Termination of the Plan.




     (i) If the Board of Directors terminates all or any portion of the Plan
and such termination adversely affects a Participant’s Supplemental Pension,
such Participant shall be entitled to receive a Supplemental Pension whether
or not such Participant has been an Eligible Employee for at least two years
or is vested in his retirement benefits under the Pension Plan at the time
of such Plan termination.




     (A) It shall be based upon the Participant’s Compensation as of
the date of the termination of the Plan;




     (B) If payment of the Supplemental Pension begins before the
Participant has ten full years of Covered Employment, the reduction
referred to in Section 5.2(a)(i) shall not apply;




     (C) If payment of the Supplemental Pension begins before the
Participant attains age 62, the reductions referred to in Section
5.2(b) shall not apply; and




     (D) If the Participant is not otherwise vested under the
Pension Plan, the calculation made under Section 5.2(a)(ii) above
shall be made as if he were so vested.




Except as otherwise provided in Section 5.4(c), the Supplemental Pension
determined under this subparagraph (c) shall be paid or commence on the
later of (i) the first day of the month following the month in which such
Participant incurs a Separation from Service, or (ii) the first day of the
month following the month in which such Participant attains age 55.




     (ii) If the Board of Directors terminates all or any portion of the
Plan and such termination adversely affects the Disability Benefits or Death
Benefits described in the Plan, a Participant shall continue to be entitled
to the Disability Benefits or Death Benefits described in the Plan if he
thereafter dies or suffers a Disability. Any such Death Benefit or
Disability Benefit, however, shall be calculated as of the date of
termination of such benefit or the Plan as if such date of termination was
the date the Participant died or suffered a Disability. Payment of any such
Death Benefit or Disability Benefit shall be made in accordance with the



27









 







terms of the Plan as in effect immediately prior to the date of
termination of such benefit or the Plan.




     (d) Amendments to Comply with Internal Revenue Code Section 409A. 
Notwithstanding any of the foregoing provisions of this Section 9.1 or any of the terms and
conditions of the Participation Agreement to the contrary, the Board of Directors reserves
the right, in its sole discretion, to amend the Plan and/or any Participation Agreement in
any manner it deems necessary or desirable in order to comply with or otherwise address
issues resulting from Code Section 409A.



     Section 9.2. Nonguarantee of Employment: Nothing contained in this Plan shall
be construed as a contract of employment between the Employer and any employee, as a right of any
employee to be continued in the employment of the Employer, or as a limitation of the right of the
Employer to discharge any of its employees, with or without Cause.



     Section 9.3. Nonalienation of Benefits: To the extent permitted by law,
benefits payable under this Plan shall not, without the Plan Administrator’s consent, be subject in
any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, charge,
garnishment, execution, or levy of any kind, either voluntary or involuntary. Any unauthorized
attempt to anticipate, alienate, sell, transfer, assign, pledge, encumber, charge, or otherwise
dispose of any right to benefits payable hereunder shall be void. No part of the assets of the
Employer shall be subject to seizure by legal process resulting from any attempt by creditors of or
claimants against any Participant or Beneficiary or any person claiming under or through the
foregoing to attach his interest under the Plan.



     Section 9.4. Liability: No director, officer, or employee of the Employer
shall be liable for any act or action, whether of commission or omission, taken by any other
director, officer, employee, or agent of the Employer under the terms of the Plan or, except in
circumstances



28









 







involving his bad faith, for anything done or omitted to be done by him under the terms of the
Plan.



     Section 9.5. Participation Agreement: Each Participant shall enter into a
Participation Agreement as a condition to his participation in the Plan. Such Participation
Agreement shall constitute a separate and enforceable agreement between the Employer and the
Participant regarding the Participant’s rights in the Plan.



     Section 9.6. Successors to the Employer: Any successor to the Employer
hereunder, which successor continues or acquires any of the business of the Employer, shall be
bound by the terms of this Plan in the same manner and to the same extent as the Employer.



     Section 9.7. Tax Withholding: The Employer shall have the right to deduct
from all amounts paid in cash or other form under this Agreement any Federal, state, local or other
taxes required by law to be withheld.



     IN WITNESS WHEREOF, and as conclusive evidence of its adoption of this Supplemental Executive
Retirement Plan, as an amendment and restatement of the Performance-Based Supplemental Executive
Benefits Plan, the Employer has caused this Plan to be duly executed on this 10th day of
September, 2008, to be effective as of the date set forth in Section 1.2 above.



	 	 	 	 	 
	 	ATMOS ENERGY CORPORATION

 	 
	 	By:  	/s/ ROBERT W. BEST
 	 
	 	 	Robert W. Best 	 
	 	 	Chairman, President and

Chief Executive Officer 	 
	 




29









 





EXHIBIT A




PARTICIPATION AGREEMENT




     THIS PARTICIPATION AGREEMENT is entered into as of the            day of                     , 20      by and
between ATMOS ENERGY CORPORATION, a Texas and Virginia corporation (the “Employer”), and
                                         (“Participant”).



WITNESSETH:




     WHEREAS, the Employer has adopted the Atmos Energy Corporation Performance-based Supplemental
Executive Benefits Plan (the “Plan”), pursuant to which certain executive or management employees
of the Employer may receive supplemental pension, disability, and death benefits; and


[The following three recitals should be used for participants in the SERP as of October 3, 2007:




     WHEREAS, Participant commenced participation in the Plan prior to October 3, 2007; and



     WHEREAS, effective as of August 7, 2007 (the “Effective Date”), the Employer amended and
restated the Plan, which was renamed the Atmos Energy Corporation Supplemental Benefits Plan; and



     WHEREAS, the parties desire to enter into a new participation agreement in order for
Participant to continue participation in the amended and restated Plan; and]



     WHEREAS, in accordance with Section 9.5 of the Plan, the Employer and Participant have agreed
to execute and enter into this Agreement.



     NOW, THEREFORE, in consideration of the premises and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:



     1. Agreement. The Employer hereby agrees to provide to Participant the benefits
described in the Plan pursuant to the terms and conditions set forth in the Plan, a copy of which
has been provided to Participant and is incorporated by reference into this Agreement. The
capitalized terms used in the Plan shall have the same meanings in this Agreement as assigned to
them in the Plan. Participant acknowledges he or she has received a copy of the Plan.



     2. Calculation of Supplemental Pension. For purposes of calculating the Participant’s
Supplemental Pension under Section 5.2(a) of the Plan and other applicable provisions of the Plan,
Covered Employment for the Participant commenced                     .



     3. Delay in Payment of Supplemental Pension For Certain Participants. If a
Participant who is a “specified employee,” as defined in § 1.409A-1(i) of the Final Regulations



1









 







under Code Section 409A, and whose Supplemental Pension would otherwise be paid or commence
(the “Original Payment Date”) before a date which is at least six (6) months following the date of
Participant’s termination of employment that constitutes a “separation from service,” as defined in
Code Section 409A and the Final Regulations issued thereunder (“Separation from Service”), the
Supplemental Pension shall be paid or commence for such Participant on the date which is six (6)
months following the date of Participant’s Separation from Service (or, if earlier, the date of
death of Participant), provided such six (6) month delay is required by Code Section 409A. All
monthly annuity payments which are delayed for six months shall be paid in a lump sum on the date
specified in this paragraph 3 for commencement of such payments. All lump sum or monthly annuity
payments which are delayed as provided in this paragraph 3 shall accrue interest for the period
from the Original Payment Date (or, in the case of the monthly annuity payments the first day of
the month in which such payment was to be made) until the date such payment is actually made. Said
interest shall be equal to the applicable segment rates as defined in Code Section 417(e)(3)(D),
without regard to the phase-in percentages specified in Code Section 417(e)(3)(D)(iii), for the
November preceding the first day of the calendar year in which Participant retires or otherwise
becomes entitled to payments without regard to this paragraph 3.



     4. Amendment or Termination of the Plan; Separation from Service or Termination of
Participation Without Cause. The Employer hereby agrees that, if




     (i) the Employer amends or terminates the Plan in such a manner that results in
a decrease in the amount of the benefits to be paid under the Plan to Participant,




     (ii) Participant incurs a Separation from Service by reason of Participant’s
employment being terminated involuntarily by the Employer for any reason other than
for Cause (as defined in subparagraph 4(e) below), or on account of LTD Disability,
or




     (iii) Participant’s participation in the Plan is terminated by the Employer for
any reason other than for Cause prior to Participant’s Separation from Service with
the Employer,


Participant shall have the right to, and the Employer agrees to pay to Participant, any benefits
accrued prior to the effective date of such amendment or termination of the Plan or of such
Participant’s Separation from Service with the Employer or termination of participation in the
Plan. Such benefits shall become payable, however, only upon such an event, in accordance with the
terms of the Plan or any portion thereof as in effect immediately prior to the effective date of
such amendment or termination of the Plan or such Participant’s Separation from Service
with the Employer or termination of participation in the Plan, except as otherwise permitted or
required under Code Section 409A and the Treasury regulations issued thereunder. The amount of
benefits that shall be paid under this paragraph 4 shall be calculated as follows:





     (a) In the event the Employer amends the Plan and such amendment results in a decrease
in the amount of the Supplemental Pension, Disability Benefit, or Death



2









 







Benefits that would be paid under the Plan but for the amendment thereof, the amount of
Participant’s benefit shall be the sum of:




     (i) The amount derived by multiplying Participant’s benefit calculated
pursuant to the terms of the Plan in effect immediately prior to the
amendment and based upon Participant’s Compensation used to calculate the
appropriate benefit by the following fraction: The numerator is the number
of full years of Covered Employment Participant has prior to the effective
date of the amendment, and the denominator is the total number of full years
of Covered Employment Participant has; however, neither the numerator nor
the denominator shall exceed 10; plus




     (ii) The amount derived by multiplying Participant’s benefit as
calculated pursuant to the terms of the Plan as amended based upon
Participant’s Compensation used to calculate the appropriate benefit by the
following fraction: The numerator is the number of years that Participant
participated in the Pension Plan after the effective date of the amendment
(but this number when added to the numerator of the fraction in subparagraph
(i) above, shall not exceed 10) and the denominator is the total number of
full years of Covered Employment Participant has (but this number shall not
exceed 10);




provided, however, that if the Plan is so amended prior to
Participant being vested in his retirement benefits under the Pension Plan,
Participant’s Supplemental Pension, Death Benefit or Disability Benefit payable
hereunder shall be calculated solely in accordance with the terms of the Plan as
amended; and provided, further, that, if such amendment occurs upon
or after a “Change in Control” (as defined in subparagraph 5(b) below),
Participant’s Supplemental Pension must at least equal the benefits which would be
paid under Section 9.1(c) of the Plan if there was a termination of the Plan at the
time of such amendment.




     (b) In the event the Employer terminates the Plan or any portion thereof after August
7, 2007, and such termination adversely affects the Disability Benefit or Death Benefits
described in the Plan, Participant’s Disability Benefit and Death Benefits shall be
calculated as of the date of termination of such benefit or the Plan as though the date of
such termination was the date that Participant became disabled or died. Such Disability
Benefit and Death Benefits shall become payable, however, only upon Participant’s disability
or death occurring in accordance with the terms of the Plan or any portion thereof as in
effect immediately prior to the date of its termination, except as otherwise permitted or
required under Code Section 409A and the Treasury regulations issued thereunder.




     (c) In the event the Employer terminates the Plan or any portion thereof and such
termination adversely affects Participant’s Supplemental Pension described in the Plan,
Participant’s Supplemental Pension shall be the amount determined in accordance with Section
5.2 of the Plan except that



3









 






     (i) It shall be based upon Participant’s Compensation as of the date of
the termination of the Plan;




     (ii) If payment of the Supplemental Pension begins before Participant
has ten full years of Covered Employment, the reduction referred to in
Section 5.2(a)(i) of the Plan shall not apply;




     (iii) If payment of the Supplemental Pension begins before Participant
attains age 62, the reductions referred to in Section 5.2(b) of the Plan
shall not apply; and




     (iv) If Participant is not otherwise vested under the Pension Plan, the
calculation made under Section 5.2(a)(ii) of the Plan shall be made as if he
were so vested.




     (d) If, at any time prior to a “Change in Control” (as defined in subparagraph 5(b)
below), Participant incurs a Separation from Service by reason of Participant’s employment
being terminated involuntarily by the Employer for any reason other than for Cause (as
defined in subparagraph 4(e) below), or on account of LTD Disability, or if Participant’s
participation in the Plan is terminated by the Employer for any reason other than for Cause,
Participant shall nevertheless be entitled to the benefits under the Plan that have accrued
prior to Participant’s Separation from Service or the termination of Plan participation, the
amount of such benefits to be calculated in the manner set forth in Section 5.2(c) of the
Plan and payable at such time and form as otherwise provided for under the Plan;
provided, however, that Participant’s right to a Supplemental Pension shall
vest only if Participant has been an Eligible Employee for at least two years and is vested
in his retirement benefits under the Pension Plan as of the date of such termination.




     (e) As used in this Agreement, “Cause” for Separation from Service shall mean
termination upon




     (i) the willful and continued failure by Participant to substantially
perform his duties with the Employer (other than any such failure resulting
from Participant’s incapacity due to physical or mental illness) after a
written demand for substantial performance is delivered to Participant by
the Employer that specifically identifies the manner in which the Employer
believes that Participant has not substantially performed his duties, or




     (ii) Participant’s willful engagement in conduct that is demonstrably
and materially injurious to the Employer, monetarily or otherwise.




For purposes of this subparagraph, no act, or failure to act, on Participant’s part shall be
deemed “willful” if done, or omitted to be done, by Participant in good faith and with a
reasonable belief that the action or omission was in the best interests of the Employer.
Notwithstanding the foregoing, Participant shall not be deemed to have been terminated



4









 







for Cause unless and until there shall have been delivered to Participant a copy of a
resolution duly adopted by the affirmative vote of not less than three-quarters (3/4) of the
entire membership of the Board of Directors of the Employer at a meeting of such Board of
Directors called and held for such purpose (after reasonable notice to Participant and an
opportunity for Participant, together with Participant’s counsel, to be heard before the
Board of Directors), finding that in the good faith opinion of the Board of Directors that
Participant was guilty of conduct set forth above in subparagraph (i) or (ii) and specifying
the particulars thereof in detail.



     5. Change in Control.




     (a) Notwithstanding anything expressly or impliedly to the contrary contained in this
Agreement or the Plan, if, at any time during the three (3)-year period immediately
following a Change in Control of the Employer, Participant incurs a Separation from Service
by reason of Participant’s employment being terminated involuntarily by the Employer for any
reason other than for Cause (as defined in subparagraph 4(e) above), or he is demoted or
reassigned to a position that causes him to cease to be an Eligible Employee, for any reason
other than for Cause (as defined in subparagraph 4(e) above), Participant shall nevertheless
be entitled to receive a Supplemental Pension at such time as he becomes entitled to receive
a benefit under the Plan regardless of whether Participant has been an Eligible Employee for
at least two years or is vested in his retirement benefits under the Pension Plan at the
time of such termination, demotion, or reassignment. If a Participant’s incurs a Separation
from Service by reason of Participant’s employment being terminated involuntarily by the
Employer for any reason other than for Cause, or his participation in the Plan is terminated
by the Employer for any reason other than for Cause, prior to a Change in Control (whether
or not a Change in Control ever occurs) and such Separation from Service or termination
either (i) was at the request or direction of a person who has entered into an agreement
with the Employer, the consummation of which would constitute a Change in Control, or (ii)
was otherwise in connection with or in anticipation of a Change in Control (whether or not a
Change in Control ever occurs), then such Participant’s Separation from Service or
termination of participation shall be deemed to have followed a Change in Control of the
Employer. Such Supplemental Pension shall be calculated in the same manner as set forth in
subparagraph 4(c) above for benefits payable in the event of a termination of the Plan.




     (b) (i) As used in this Agreement, except as provided herein, a “Change in
Control” of the Employer occurs upon a change in the Employer’s ownership, its
effective control or the ownership of a substantial portion of its assets, as
follows:




     (A) Change in Ownership. A change in ownership of the
Employer occurs on the date that any “Person” (as defined in
subparagraph (ii) below), other than (1) the Employer or any of its
subsidiaries, (2) a trustee or other fiduciary holding securities
under an employee benefit plan of the Employer or any of its
Affiliates, (3) an underwriter temporarily holding stock pursuant to
an offering of such stock, or (4) a corporation owned, directly or



5









 







indirectly, by the shareholders of the Employer in
substantially the same proportions as their ownership of the
Employer’s stock, acquires ownership of the Employer’s stock that,
together with stock held by such Person, constitutes more than 50%
of the total fair market value or total voting power of the
Employer’s stock. However, if any Person is considered to own
already more than 50% of the total fair market value or total voting
power of the Employer’s stock, the acquisition of additional stock
by the same Person is not considered to be a Change of Control. In
addition, if any Person has effective control of the Employer
through ownership of 30% or more of the total voting power of the
Employer’s stock, as discussed in subparagraph (i)(B) below, the
acquisition of additional control of the Employer by the same Person
is not considered to cause a Change in Control pursuant to this
subparagraph (i)(A); or




     (B) Change in Effective Control. Even though the
Employer may not have undergone a change in ownership under
subparagraph (i)(A) above, a change in the effective control of the
Employer occurs on either of the following dates:




     (1) the date that any Person acquires (or has acquired
during the 12-month period ending on the date of the most
recent acquisition by such Person) ownership of the
Employer’s stock possessing 30 percent or more of the total
voting power of the Employer’s stock. However, if any Person
owns 30% or more of the total voting power of the Employer’s
stock, the acquisition of additional control of the Employer
by the same Person is not considered to cause a Change in
Control pursuant to this subparagraph (i)(B)(1); or




     (2) the date during any 12-month period when a majority
of members of the Board is replaced by directors whose
appointment or election is not endorsed by a majority of the
Board before the date of the appointment or election;
provided, however, that any such director shall not be
considered to be endorsed by the Board if his or her initial
assumption of office occurs as a result of an actual or
threatened solicitation of proxies or consents by or on
behalf of a Person other than the Board; or




     (C) Change in Ownership of Substantial Portion of
Assets. A change in the ownership of a substantial portion of
the Employer’s assets occurs on the date that a Person acquires (or
has acquired during the 12-month period ending on the date of the



6









 







most recent acquisition by such Person) assets of the Employer,
that have a total gross fair market value equal to at least 40% of
the total gross fair market value of all of the Employer’s assets
immediately before such acquisition or acquisitions. However, there
is no Change in Control when there is such a transfer to an entity
that is controlled by the shareholders of the Employer immediately
after the transfer, through a transfer to (1) a shareholder of the
Employer (immediately before the asset transfer) in exchange for or
with respect to the Employer’s stock; (2) an entity, at least 50% of
the total value or voting power of the stock of which is owned,
directly or indirectly, by the Employer; (3) a Person that owns
directly or indirectly, at least 50% of the total value or voting
power of the Employer’s outstanding stock; or (4) an entity, at
least 50% of the total value or voting power of the stock of which
is owned by a Person that owns, directly or indirectly, at least 50%
of the total value or voting power of the Employer’s outstanding
stock.




     (ii) For purposes of subparagraph (i) above,




     (A) “Person” shall have the meaning given in Section 7701(a)(1)
of the Code. Person shall include more than one Person acting as a
group as defined by the Final Treasury Regulations issued under
Section 409A of the Code.




     (B) “Affiliate” shall have the meaning set forth in Rule 12b-2
promulgated under Section 12 of the Securities Exchange Act of 1934,
as amended.




     (iii) The provisions of this subparagraph 5(b) shall be interpreted in
accordance with the requirements of the Final Treasury Regulations under
Code Section 409A, it being the intent of the parties that this subparagraph
5(b) shall be in compliance with the requirements of said Code Section and
said Regulations.



     6. Limitations. Except as otherwise provided in paragraph 5 of this Agreement,
Participant agrees that nothing in this Agreement or the Plan shall entitle him, or be deemed to
entitle him, to receive a Supplemental Pension under the Plan if:




     (a) he has not met the requirements for a Supplemental Pension as set forth in
the Plan,




     (b) his employment with the Employer is terminated prior to his reaching the
age of eligibility for the immediate commencement of his Pension Plan benefit due to
resignation, or



7









 






     (c) his employment with the Employer or participation in the Plan is terminated
for Cause (as defined in subparagraph 4(e) above).



     7. Amendment or Termination. No amendment or termination of the Plan by the Employer
shall constitute an amendment or termination of this Agreement. This Agreement may be amended or
modified only by the written agreement of the parties hereto, and will terminate only upon the
occurrence of the earlier of the following events: (a) the execution of a written agreement to
terminate this Agreement signed by all of the parties hereto, (b) the satisfaction of all of the
Employer’s obligations to Participant under the Plan and this Agreement, (c) the termination by
Participant of Participant’s employment with the Employer by resignation effective prior to
Participant reaching age 55, unless such resignation occurs after a Change in Control, or (d) the
termination for Cause of Participant’s employment with the Employer. Notwithstanding any of the
terms and conditions of this Participation Agreement or Section 9.1 of the Plan to the contrary,
the Board of Directors reserves the right, in its sole discretion, to amend the Plan and/or this
Participation Agreement in any manner it deems necessary or desirable in order to comply with or
otherwise address issues resulting from Code Section 409A.



     8. Funding. Not later than the time each Participant who elected to receive his
Supplemental Pension in the form of a monthly annuity provided for in Section 5.3(a)(i), (ii) or
(iv) of the Plan Retires or becomes eligible to receive an unreduced Supplemental Pension under the
Plan, whichever occurs first, the Employer shall contribute to a trust or other funding arrangement
an amount necessary to fund 100% of the then-present value of Participant’s accrued Supplemental
Pension. Each Participant who elected or is otherwise entitled to receive his Supplemental Pension
in a lump sum payment shall not, except as provided below, have any amount contributed to a trust
or other funding arrangement on his behalf pursuant to this paragraph 8. Notwithstanding the
foregoing, immediately upon a Change in Control, the Employer shall contribute to a trust or other
funding arrangement an amount necessary to fund 100% of the then-present value of all Supplemental
Pension benefits (vested and unvested) payable under this Agreement and/or the Plan to Participant,
regardless of whether Participant is then eligible to Retire or to receive an unreduced
Supplemental Pension and regardless of the form in which such Supplemental Pension is to be paid.
The amount required to be funded by this paragraph 8 shall be calculated in accordance with
paragraph 9 hereof. The Employer shall review the funding status of the trust or other funding
arrangement established under this paragraph 8 on an annual basis and shall make contributions
thereto as may be required to maintain the value of the assets thereof at no less than 100% of the
then-present value of all such Supplemental Pension benefits.



     9. Calculation of Funding Obligations. The Employer shall calculate its funding
obligations under this Agreement and the Plan solely by using the actuarial assumptions and
methodology set forth in Exhibit C to the Plan. Upon and after a Change in Control of the Employer
which occurs at a time when Participant is an Eligible Employee, the actuarial assumptions and
methodology set forth in Exhibit C may be changed with respect to Participant or, if applicable,
his Beneficiary, only with Participant’s, or, if applicable, his Beneficiary’s, written consent.



8









 





     10. Confidential Information.




     (a) Participant shall not disclose or use at any time, either during employment
or thereafter, any Confidential Information (as defined below) of which Participant
is or becomes aware, whether or not such information is developed by him, except to
the extent that such disclosure or use is directly related to and required by
Participant’s performance in good faith of duties assigned to Participant by the
Employer. Participant will take all appropriate steps to safeguard Confidential
Information and to protect it against disclosure, misuse, espionage, loss and theft.
Participant shall deliver to the Employer at the termination of employment or at
any time the Employer may request all memoranda, notes, plans, records, reports,
computer tapes and software and other documents and data (and copies thereof,
including electronic copies) relating to the Confidential Information, work product
or the business of the Employer or any of its Subsidiaries which he may then possess
or have under his control.




     (b) As used in this Agreement, the term “Confidential Information” means
information that is not generally known to the public and that is used, developed or
obtained by the Employer in connection with its business, including but not limited
to (i) information, observations and data obtained by Participant while employed by
the Employer and its predecessors (including information, observations and data
obtained prior to the date of this Agreement), concerning the business or affairs of
the Employer, (ii) products or services, (iii) fees, costs and pricing structures,
(iv) designs, (v) analyses, (vi) drawings, photographs and reports, (vii) computer
software, including operating systems, applications and program listings, (viii)
flow charts, manuals and documentation, (ix) data bases, (x) accounting and business
methods, (xi) inventions, devices, new developments, methods and processes, whether
patentable or unpatentable and whether or not reduced to practice, (xii) customers
and clients and customer or client lists (including names of contact persons,
purchasing patterns or preferences, past purchase and sale history and other
information), (xiii) other copyrightable works, (xiv) all production methods,
processes, technology and trade secrets, (xv) business strategies, acquisition plans
and candidates, financial or other performance data and personnel lists and data,
and (xvi) all similar and related information in whatever form. Confidential
Information will not include any information that has been published in a form
generally available to the public, or has become otherwise generally known by the
public (in each case, through no fault of Participant) prior to the date Participant
proposes to disclose or use such information. Participant shall not disclose
Confidential Information unless it is required to be disclosed by law, regulation or
an order of a court or other governmental entity. In the event that an action is
initiated pursuant to which Participant may become legally compelled to disclose all
or any portion of the Confidential Information, he shall provide the Employer with
prompt notice thereof, so that the Employer may seek a protective order or other
appropriate remedy. In the event that such protective order or other remedy is not
obtained, Participant shall furnish only that portion of the Confidential
Information which is



9









 







legally required and shall exercise his best efforts to obtain reliable
assurances that confidential treatment will be afforded such portion of the
Confidential Information. Confidential Information will not be deemed to have been
published merely because individual portions of the information have been separately
published, but only if all material features comprising such information have been
published in combination.



     11. Annual Statements. As soon as practicable after the end of each Plan Year, the
Employer shall deliver to Participant or, if applicable, his Beneficiary, a statement containing
(a) the present value of the Employer’s future benefit obligations to Participant, or, if
applicable, his Beneficiary; (b) the actuarial assumptions used to calculate the present value of
the Employer’s future benefit obligations under the Plan; and (c) the aggregate current value of
the assets, if any, held in a trust or other funding arrangement which are sufficient to fund 100%
of the then-present value of the accrued Supplemental Pension for any Participant, Retired
Participant, or Beneficiary for whom benefits are paid in the form of an annuity and for whom
assets are required to be held in trust.



     12. No Guarantee of Employment. Nothing contained in this Agreement shall be
construed as a contract of employment between the Employer and Participant, or as a right of
Participant to be continued in the employment of the Employer, or as a limitation of the right of
the Employer to discharge Participant with or without cause.



     13. Legal Fees and Expenses. The Employer agrees to pay any and all legal fees and
expenses incurred by Participant in seeking to obtain or enforce any right or benefit provided by
this Agreement.



     14. Capitalized Terms. Each capitalized term used in this Agreement that is not
otherwise defined herein shall have the same meaning attributed to it in the Plan.



     15. Agreement Binding on Successors to the Employer. Any successor to the Employer
hereunder, which successor continues or acquires any of the business of the Employer, shall be
bound by the terms of this Agreement in the same manner and to the same extent as the Employer.



     16. Prior Agreements Superseded. The terms of this Agreement supersede the terms of
all prior Participation Agreements between Participant and the Employer.



     17. Governing Law. This Agreement shall be construed and enforced in accordance with
the laws of the State of Texas.



     IN WITNESS WHEREOF, the parties hereto have executed this Participation Agreement as of the
date first written above.



	 	 	 	 	 	 
	PARTICIPANT       	 	ATMOS ENERGY CORPORATION

 	 
	 	 	By:  	 	 
	 	 	 	 	 




10









 





EXHIBIT B




ATMOS ENERGY CORPORATION




SUMMARY OF ACTUARIAL ASSUMPTIONS

FOR DETERMINING

LUMP SUM DISTRIBUTIONS

AND

OPTIONAL ANNUITY FORMS




Actuarial assumptions for determining lump sums:





	 	(i)	Interest: 	The applicable segment rates as defined in Code Section 417(e)(3)(D)
for the November preceding the first day of the calendar year in which the lump sum is
paid and without regard to the phase-in percentages specified in Code Section
417(e)(3)(D)(iii).
	 
	 	(ii)	Mortality:  	The applicable mortality table as defined in Code Section 417(e)(3),
and amended by the Pension Protection Act.





Actuarial assumptions for conversion of a life annuity to an optional form of payment other than a
lump sum:





	 	(i)	Interest:  	6.0% per year.
	 
	 	(ii)	Mortality:  	1983 Unisex Group Annuity Mortality (50% 1983 Group Annuity
Mortality for males, 50% 1983 Group Annuity Mortality for females).





1









 





EXHIBIT C




ATMOS ENERGY CORPORATION




SUMMARY OF ACTUARIAL ASSUMPTIONS AND METHODS

FOR

DETERMINING SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN TRUST

ANNUAL FUNDING LIABILITIES




Actuarial Assumptions




	 	 	 
	Discount Rate	 	8%

	 	 	 

	Mortality	 	 

	Prior to Age 62
	 	None

	After Age 62
	 	Code Section 417(e)(3)

	 	 	Applicable Mortality Table*

	 	 	 

	Salary Scale	 	0%

	 	 	 

	Benefit Percentage	 	60%









 




			
	*	 	The table prescribed in Rev. Rul. 2001-62, or such other mortality table which in the future may
be specified from time to time as the applicable mortality table for purposes of Code Section
417(e)(3).





Method for Determining Liabilities



The liability determined is the present value as of the valuation date of the projected age 62
Supplemental Executive Retirement Plan benefit. The projected age 62 benefit is based on
Supplemental Executive Retirement Plan compensation determined as the sum of (1) and (2) as
follows:





	 	(1)	 	The greater of (A) Participant’s annual base salary at the date of his
termination of employment, or (B) the average of the Participant’s annual base salary
for the highest three (3) calendar years (whether or not consecutive) of the
Participant’s employment with the Employer.
	 
	 	(2)	 	The greater of (A) the Participant’s last Performance Award or (B) the average
of the highest three (3) Performance Awards (whether or not consecutive).





     The qualified plan offset is the projected age 62 qualified plan benefit with no salary scale
or wage base projections.




1