Atmos Energy Corporation Annual Incentive Plan for Management (as amended and restated August 3, 2021)
ATMOS ENERGY CORPORATION
ANNUAL INCENTIVE PLAN FOR MANAGEMENT
(As amended and restated August 3, 2021)
The Atmos Energy Corporation Annual Incentive Plan for Management (hereinafter called the Plan) was adopted by the Board of Directors of Atmos Energy Corporation, a Texas and Virginia corporation (hereinafter called the Company), on August 12, 1998 to be effective October 1, 1998 and was first approved by the Companys shareholders on February 10, 1999. This document sets forth the terms of the Plan as amended and restated effective August 3, 2021.
The Plan is intended to provide the Company a means by which it can engender and sustain a sense of personal commitment on the part of its executives and senior managers in the continued growth, development, and financial success of the Company and encourage them to remain with and devote their best efforts to the business of the Company, thereby advancing the interests of the Company, shareholders and customers. Accordingly, the Company may award to executives and senior managers annual incentive compensation on the terms and conditions established herein.
For the purpose of the Plan, unless the context requires otherwise, the following terms will have the meanings indicated:
2.1 Award means the compensation payable under this Plan to a Participant by the Committee pursuant to such terms, conditions, restrictions, and limitations established by the Committee and the Plan.
Board means the Board of Directors of the Company.
2.3 (a) Change in Control of the Company occurs upon a change in the Companys ownership, its effective control or the ownership of a substantial portion of its assets, as follows:
(i) Change in Ownership. A change in ownership of the Company occurs on the date of consummation of any transaction under which any Person (as defined in Section 2.3(b)(i) below), other than (1) the Company or any of its subsidiaries, (2) a trustee or other fiduciary holding securities under an employee benefit plan of the Company 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 Company in
substantially the same proportions as their ownership of the Companys stock, acquires ownership of the Companys 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 Companys 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 Companys 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 Company through ownership of 30% or more of the total voting power of the Companys stock, as discussed in paragraph (ii) below, the acquisition of additional control of the Company by the same Person is not considered to cause a Change in Control pursuant to this paragraph (i); or
(ii) Change in Effective Control. Even though the Company may not have undergone a change in ownership under paragraph (i) above, a change in the effective control of the Company occurs on either of the following dates:
(A) the date of consummation of any transaction under which 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 Companys stock possessing 30% or more of the total voting power of the Companys stock. However, if any Person owns 30% or more of the total voting power of the Companys stock, the acquisition of additional control of the Company by the same Person is not considered to cause a Change in Control pursuant to this subparagraph (ii)(A); or
(B) 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 will 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
(iii) Change in Ownership of Substantial Portion of Assets. A change in the ownership of a substantial portion of the Companys assets occurs on the date of consummation of any transaction under which 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 Company, that have a total gross fair market value equal to at least 40% of the total gross fair market value of all of the Companys 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 Company immediately after the transfer, through a transfer to (A) a shareholder of the Company (immediately before the asset transfer) in exchange for or with respect to the Companys stock; (B) an entity, at least 50% of the
total value or voting power of the stock of which is owned, directly or indirectly, by the Company; (C) a Person that owns directly or indirectly, at least 50% of the total value or voting power of the Companys outstanding stock; or (D) 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 Companys outstanding stock.
(b) For purposes of subparagraph (a) above:
(i) Person has the meaning given in Section 7701(a)(1) of the Code. Person includes more than one Person acting as a group as defined by the Final Treasury Regulations issued under Section 409A of the Code.
(ii) Affiliate has the meaning set forth in Rule 12b-2 promulgated under Section 12 of the Securities Exchange Act of 1934, as amended.
(c) The provisions of this Section 2.3 will be interpreted in accordance with the requirements of the Final Treasury Regulations under Section 409A of the Code, it being the intent of the parties that this Section 2.3 will comply with the requirements of said Code Section and said Regulations.
2.4 Code means the Internal Revenue Code of 1986, as amended, together with the published rulings, regulations, and interpretations duly promulgated thereunder.
2.5 Committee means the Human Resources Committee of the Board, or such other Committee as is established pursuant to Article 3, who is responsible for administering the Plan in accordance with Article 3.
2.6 Common Stock means the common stock, with no par value (stated value of $.005 per share), which the Company currently is authorized to issue or may in the future be authorized to issue.
2.7 Company means Atmos Energy Corporation, a Texas and Virginia corporation, and any successor entity.
2.8 Date of Conversion means the date on which the Board approves the Awards that have been determined and recommended by the Committee; this is also the effective Date of Conversion for Restricted Stock Units.
2.9 Employee means common-law employee (as defined in accordance with the Regulations and Revenue Rulings then applicable under Section 3401(c) of the Code) of the Company or any Subsidiary of the Company.
2.10 Fair Market Value of a share of Common Stock is the mean of the highest and lowest prices per share on the New York Stock Exchange Consolidated Tape, or such reporting service as the Board may select, on the appropriate date, or in the absence of reported sales on such day, the most recent previous day for which sales were reported.
2.11 Long-Term Incentive Plan is the Atmos Energy Corporation 1998 Long-Term Incentive Plan, as amended from time to time.
2.12 Participant means an Employee who is selected by the Committee to participate in the Plan.
2.13 Performance Criteria or Performance Goals or Performance Measures mean the objectives established by the Committee for a Performance Period, for the purpose of determining when an Award subject to such objectives is earned.
2.14 Performance Period means the consecutive 12-month period that constitutes the Companys fiscal year.
2.15 Plan means the Atmos Energy Corporation Annual Incentive Plan for Management, dated effective August 3, 2021, as amended from time to time.
2.16 Restricted Stock Unit means a fixed or variable dollar denominated right to acquire Common Stock, which may or may not be subject to restrictions, contingently granted to a Participant as permitted and pursuant to the terms and provisions of the Long-Term Incentive Plan.
2.17 Subsidiary means (i) any corporation in an unbroken chain of corporations beginning with the Company, if each of the corporations other than the last corporation in the unbroken chain owns stock possessing a majority of the total combined voting power of all classes of stock in one of the other corporations in the chain, (ii) any limited partnership, if the Company or any corporation described in item (i) above owns a majority of the general partnership interest and a majority of the limited partnership interests entitled to vote on the removal and replacement of the general partner, and (iii) any partnership or limited liability company, if the partners or members thereof are composed only of the Company, any corporation listed in item (i) above or any limited partnership listed in item (ii) above. Subsidiaries means more than one of any such corporations, limited partnerships, partnerships or limited liability companies.
2.18 Termination of Service means with respect to each Participant who is an Employee, a separation from service as defined in Section 1.409A-1(h) of the Final Treasury Regulations under Section 409A of the Code, or any successor provision thereto.
The Plan will be administered by the Human Resources Committee of the Board unless otherwise determined by the Board. If said Human Resources Committee does not so serve, the Committee will consist of not fewer than two persons; any member of the Committee may be removed at any time, with or without cause, by resolution of the Board; and any vacancy occurring in the membership of the Committee may be filled by appointment by the Board.
The Committee will select one of its members to act as its Chairman. A majority of the Committee will constitute a quorum, and the act of a majority of the members of the Committee present at a meeting at which a quorum is present will be the act of the Committee.
The Committee will determine and designate from time to time the eligible persons to whom Awards will be made. The Committee, in its discretion, will (i) interpret the Plan, (ii) prescribe, amend, and rescind any rules and regulations necessary or appropriate for the administration of the Plan, and (iii) make such other determinations and take such other action as it deems necessary or advisable in the administration of the Plan. Any interpretation, determination, or other action made or taken by the Committee will be final, binding, and conclusive on all interested parties. Notwithstanding the foregoing, the Committee may delegate the responsibility for administering the Plan, subject to such limitations as the Committee deems appropriate. All references in the Plan to the Committee will be, as applicable, to the Committee or any other committee or officer to whom the Board or the Committee has delegated authority to administer the Plan.
With respect to restrictions in the Plan that are based on the requirements of Section 409A of the Code, or any other applicable law, rule or restriction (collectively, applicable law), to the extent that any such restrictions are no longer required by applicable law, the Committee has the sole discretion and authority to grant Awards hereunder that are not subject to such mandated restrictions and/or to waive any such mandated restrictions with respect to outstanding Awards.
Any Employee (including an Employee who is also a director or an officer) is eligible to participate in the Plan. The Committee, upon its own action, may grant, but will not be required to grant, an Award to any Employee. The Committee may grant Awards at any time and from time to time to new Participants, or to then Participants, or to a greater or lesser number of Participants, and may include or exclude previous Participants, as the Committee determines. The Committees determinations under the Plan (including without limitation determinations of which Employees, if any, are to receive Awards, the form, amount and timing of such Awards, the terms and provisions of such Awards, and the agreements evidencing same) need not be uniform and may be made by it selectively among Employees who receive, or are eligible to receive, Awards under the Plan.
PERFORMANCE GOALS AND MEASUREMENT
5.1 Performance Goals Establishment. The Committee will establish performance Goals not later than 90 days after commencement of the Performance Period. The Performance Goals may be identical for all Participants or, at the discretion of the Committee, may be different to reflect more appropriate measures of individual performance.
5.2 Awards. Awards will be made annually in accordance with actual performance compared to the Performance Goals previously established by the Committee for the Performance Period.
5.3 Performance Goals. The Committee in writing will establish Performance Goals for a Performance Period. Performance Goals may include one or more business and/or financial goals, nonfinancial goals, strategic objectives or individual goals, as determined by the Committee in its discretion.
5.4 Adjustments. The Committee has discretionary authority to modify any provision of the Plan at any time and for any reason, including the authority to modify (i) the method of calculating the attainment of Performance Goals, (ii) existing Performance Goals, and (iii) calculated payouts.
5.5 Determination of Awards. The Award and payment of any Award under this Plan to a Participant with respect to a relevant Performance Period will be contingent upon the attainment of the Performance Goals that are applicable to such Participant. The Committee will certify in writing prior to payment of any such Award that such applicable Performance Goals relating to the Award are satisfied. Approved minutes of the Committee may be used for this purpose. The amount of an Award may be adjusted (up or down) by the Committee, in its sole discretion, to more accurately reflect an individual Participants performance during the calendar year.
6.1 Timing of Awards. At the first meeting of the Committee after the completion of the Performance Period, the Committee will review the prior years performance in relation to the Performance Goals and will determine and recommend to the Board the Awards for such Performance Period. Following the meeting of the Committee, the Board will meet and approve the Awards as recommended by the Committee. The meeting of the Committee and the meeting of the Board pursuant to this Section 6.1 will both occur within 60 days following the completion of the Performance Period.
6.2 Form of Awards. Awards are paid in cash after the end of the Performance Period and as soon as administratively feasible following the Board approval as described in Section 6.1, but in no event will such cash Awards be paid later than December 31 of the calendar year in which the Performance Period ends. However, if and as the Committee so permits, an Employee who becomes a Participant prior to the commencement of the Performance Period may voluntarily elect, prior to the commencement of the Performance Period, to convert any Award paid to him in cash in twenty-five percent (25%) increments, in whole or part, into Restricted Stock Units, with the value of the Restricted Stock Units (each such Unit being equal to the Fair Market Value of a share of Common Stock as of the Date of Conversion) being equal to one hundred twenty percent (120%) of the amount of the Award. An Employee who becomes a Participant after the commencement of the Performance Period may not voluntarily elect to convert into Restricted Stock Units any portion of any Award paid to him in cash from the date of commencement of his participation through the end of such Performance Period.
For all Restricted Stock Units received as a result of a Participants election to convert, on the date which is three (3) years from the Date of Conversion (the Distribution Date), but in no event later than December 31 of the calendar year in which the Distribution Date occurs, the Participant will receive a distribution of shares of Common Stock equal in number to the number of Restricted Stock Units determined under this Section 6.2. These Restricted Stock Units will be granted as time-lapse restricted stock units on the Date of Conversion pursuant to the Long-Term Incentive Plan.
6.4 Maximum Awards. The Committee will determine the amount available for payment of an Award for any Performance Period.
The Company will have the right to deduct from any payment to be made pursuant to the Plan the amount of any taxes required by law to be withheld with respect to such payments.
NO RIGHT TO CONTINUED EMPLOYMENT OR AWARDS
No Employee will have any claim or right to be made an Award, and the making of an Award will not be construed as giving a Participant the right to be retained in the employ of the Company or any of its Subsidiaries. Further, the Company and its Subsidiaries expressly reserve the right at any time to terminate the employment of any Participant free from any liability under the Plan; except that a Participant, who meets or exceeds the Performance Goals for the Performance Period and was actively employed for the full term of the Performance Period, will be eligible for an Award even though the Participant is not an active employee of the Company at the time the Committee makes Awards under the Plan.
CHANGE IN CONTROL
Immediately upon a Change in Control, notwithstanding any other provision of this Plan, all Awards for the Performance Period in which the Change in Control occurs will be deemed earned at the target Performance Goal level, and the Company will make a payment in cash to each Participant within twenty (20) days after the effective date of the Change in Control in the amount of such target Award. The making of Awards under the Plan will in no way affect the right of the Company to adjust, reclassify, reorganize, or otherwise change its capital or business structure, or to merge, consolidate, dissolve, liquidate, sell or transfer all or any portion of its businesses or assets.
AMENDMENT, MODIFICATION, SUSPENSION, OR TERMINATION
Subject to the limitations set forth in this Article 10, the Board may at any time and from time to time, without the consent of the Participants, alter, amend, revise, suspend, or discontinue the Plan in whole or in part.
The validity, construction and effect of the Plan and any actions taken or relating to the Plan will be determined in accordance with the laws of the State of Texas and applicable Federal law.
SUCCESSORS AND ASSIGNS
The Company will require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially all of the business and/or assets of the Company, expressly to assume and agree to perform the Companys obligation under this Plan in the same manner and to the same extent that the Company would be required to perform them if no such succession had taken place. As used herein, the Company means the Company as defined above and any successor to its business and/or assets.
No member of the Board or the Committee, nor any officer or employee of the Company acting on behalf of the Board or the Committee, will be personally liable for any action, determination, or interpretation taken or made in good faith with respect to the Plan, and all members of the Board or the Committee and each and any officer or employee of the Company acting on their behalf will, to the extent permitted by law, be fully indemnified and protected by the Company in respect of any such action, determination, or interpretation.
CODE SECTION 409A COMPLIANCE
To the extent (i) any payment to which a Participant becomes entitled under this Plan in connection with the Participants termination of employment with the Company (for reasons other than death) constitutes a payment of deferred compensation subject to Section 409A of the Code, and (ii) the Participant is deemed at the time of such termination of employment to be a specified employee under Section 409A of the Code, then such payment will not be made or commence until the earliest of (A) the
expiration of the six (6) month period measured from the date of Participants separation from service (as such term is defined in final Treasury Regulations issued under Section 409A of the Code and any other guidance issued thereunder) with the Company; or (B) the date of the Participants death following such separation from service. Upon the expiration of the applicable deferral period, any payment that would have otherwise been made during that period in the absence of this Article 14 will be made to the Participant or the Participants beneficiary.
Awards granted under this Plan will be subject to any recoupment policy the Company adopts.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed as of August 3, 2021 by its Chief Executive Officer pursuant to prior actions taken by the Board.
|ATMOS ENERGY CORPORATION|
|By:||/s/ Kevin Akers|
|President and Chief Executive Officer|