Exhibit 10.30(d)
AMENDMENT NO. 3 TO
CONSULTING AGREEMENT
THIS AMENDMENT NO. 3 TO CONSULTING AGREEMENT (the "Amendment") is made and
entered into this 10th day of November, 1999, by and between ATMOS ENERGY
CORPORATION, a Texas and Virginia corporation (the "Company"), and XXXXXXX X.
XXXXXXX ("Consultant").
WHEREAS, the Company and Consultant entered into that certain Consulting
Agreement dated October 1, 1994, as amended by Amendment No. 1 to Consulting
Agreement dated May 14, 1997 and Amendment No. 2 to Consulting Agreement dated
August 12, 1998 (the "Agreement"); and
WHEREAS, the Company and Consultant desire to amend the Agreement as set
forth below and to extend the term thereof for an additional one-year period;
NOW THEREFORE, for and in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereby agree as follows:
1. Paragraph 5 of the Agreement shall be deleted and replaced in its
entirety by the following:
5.1. Change in Control. Upon a "Change in Control" of the Company, all
sums payable to Consultant over the course of the term of this Agreement
shall instead be paid by Company to Consultant within ten days of a "Change
in Control". A "Change in Control" of the Company shall be deemed to have
occurred if:
(a) Any "Person" (as defined in Section 5.2(a) 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 securities pursuant
to an offering of such securities, or (4) a corporation owned, directly or
indirectly, by the shareholders of the Company in substantially the same
proportions as their ownership of stock of the Company, is or becomes the
"beneficial owner" (as defined in Section 5.2(b)
below), directly or indirectly, of securities of the Company (not including
in the securities beneficially owned by such person any securities acquired
directly from the Company or its Affiliates) representing 33 1/3% or more
of the combined voting power of the Company's then outstanding securities,
or 33 1/3% or more of the then outstanding common stock of the Company,
excluding any Person who becomes such a beneficial owner in connection with
a transaction described in subparagraph (c)(1) below.
(b) During any period of two consecutive years (the "Period"),
individuals who at the beginning of the Period constitute the Board of
Directors of the Company and any "new director" (as defined in Section
5.2(c) below) cease for any reason to constitute a majority of the Board of
Directors.
(c) There is consummated a merger or consolidation of the Company or
any direct or indirect subsidiary of the Company with any other
corporation, except if:
(1) the merger or consolidation would result in the voting
securities of the Company outstanding immediately prior thereto
continuing to represent (either by remaining outstanding or by being
converted into voting securities of the surviving entity or any
parent thereof) at least sixty percent (60%) of the combined voting
power of the voting securities of the Company or such surviving
entity or any parent thereof outstanding immediately after such
merger or consolidation; or
(2) the merger or consolidation is effected to implement a
recapitalization of the Company (or similar transaction) in which no
Person is or becomes the beneficial owner, directly or indirectly, of
securities of the Company (not including in the securities
beneficially owned by such Person any securities acquired directly
from the Company or its Affiliates other than in connection with the
acquisition by the Company or its Affiliates of a business)
representing 60% or more of the combined voting power of the
Company's then outstanding securities;
(d) The shareholders of the Company approve a plan of complete
liquidation or dissolution of the Company or an agreement for the sale or
disposition by the Company of all or substantially all the Company's
assets, other than a sale or disposition by the Company of all or
substantially all of the Company's assets to an entity, at least 60% of the
combined voting power of the voting securities of which are owned by the
stockholders of the Company in substantially the same proportions as their
ownership of the Company immediately prior to such sale.
5.2. Definitions. For purposes of Section 5.1 above,
(a) "Person" shall have the meaning given in Section 3(a)(9) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act") as
modified and used in Sections 13(d) and 14(d) of the Exchange Act.
(b) "Beneficial owner" shall have the meaning provided in Rule 13d-3
under the Exchange Act.
(c) "New director" shall mean an individual whose election by the
Company's Board of Directors or nomination for election by the Company's
shareholders was approved by a vote of at least two-thirds (2/3) of the
directors then still in office who either were directors at the beginning
of the Period or whose election or nomination for election was previously
so approved or recommended. However, "new director" shall not include a
director whose initial assumption of office is in connection with an actual
or threatened election contest, including but not limited to a consent
solicitation relating to the election of directors of the Company.
(d) "Affiliate" shall have the meaning set forth in Rule 12b-2
promulgated under Section 12 of the Exchange Act.
2. Extension of Term. In accordance with Subparagraph 4(a) of the
Agreement, the Company and the Consultant hereby agree to extend the term of the
Agreement for an additional one-
year period commencing on October 1, 2000 and ending September 30, 2001. The
Consultant's annual compensation during such year shall be $130,000 to be paid
in equal semi-annual installments on October 1, 2000 and April 1, 2001.
3. No Other Amendment. Except as expressly amended hereby, all of the other
terms, provisions, and conditions of the Agreement are hereby ratified and
confirmed and shall remain unchanged and in full force and effect. To the extent
any terms or provisions of this Amendment conflict with those of the Agreement,
the terms and provisions of the Agreement shall control. This Amendment shall be
deemed a part of, and is hereby incorporated into the Agreement. The Agreement
and any and all other documents heretofore, now, or hereafter executed and
delivered pursuant to the terms of the Agreement are hereby amended so that any
reference to the Agreement shall mean a reference to the Agreement as amended
hereby.
4. Governing Law. This Amendment shall be governed by, and construed in
accordance with, the laws of the State of Texas.
5. Counterparts. This Amendment may be executed in counterparts, each of
which will be an original, but all of which together will constitute one and the
same agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
effective as of the date and year first above written.
COMPANY
ATMOS ENERGY CORPORATION
By: /s/ XXXXXX X. BEST
---------------------------------
Xxxxxx X. Best
Chairman, President and
Chief Executive Officer
CONSULTANT
/s/ XXXXXXX X. XXXXXXX
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XXXXXXX X. XXXXXXX
