AGREEMENT AND PLAN OF MERGER

 

Exhibit 2.1

AGREEMENT AND PLAN OF MERGER

by and among

Atlas Energy Resources, LLC,

Atlas America, Inc.,

Atlas Energy Management, Inc.

and

Merger Sub, as defined herein

Dated as of April 27, 2009

 

 

 

TABLE OF CONTENTS

(continued)

 

TABLE OF CONTENTS

(continued)

 

TABLE OF CONTENTS

(continued)

 

iv

AGREEMENT AND PLAN OF MERGER

     This AGREEMENT AND PLAN OF MERGER, dated as of April 27, 2009 (this “ Agreement ”), is entered into by and among ATLAS ENERGY RESOURCES, LLC, a Delaware limited liability company (“ ATN ”), ATLAS AMERICA, INC., a Delaware corporation (“ Parent ”), ATLAS ENERGY MANAGEMENT, INC., a Delaware corporation (“ Atlas Energy Management ”), and, from and after its accession to this Agreement in accordance with Section 2.1(b) , the Delaware limited liability company to be formed as a wholly owned subsidiary of Parent (“ Merger Sub ”).

WITNESSETH:

     WHEREAS, the Board of Directors of Parent (the “ Parent Board ”), has determined that this Agreement and the transactions contemplated hereby are advisable and in the best interests of Parent and its stockholders, including consummating the business combination provided for in this Agreement, pursuant to which Merger Sub will, subject to the terms and conditions set forth herein, merge with and into ATN (the “ Merger ”), with ATN surviving, such that following the Merger, ATN will be a wholly owned subsidiary of Parent; and

     WHEREAS, the Parent Board has authorized Parent to consent to the adoption of this Agreement by Merger Sub in accordance with Section 2.1(b) ; and

     WHEREAS, the ATN Special Committee (as defined herein), the members of which constitute a majority of the members of the ATN Conflicts Committee, has considered the transactions contemplated by this Agreement and, at a meeting duly called and held, has, by unanimous vote of all of its members, determined that this Agreement and the transactions contemplated hereby are advisable, fair and reasonable to and in the best interests of the Unaffiliated Unitholders and ATN, and resolved to recommend that the full ATN Board (as defined below) adopt this Agreement, approve the transactions contemplated hereby, and recommend adoption and approval by the ATN Unitholders; and

     WHEREAS, the Board of Directors of ATN (the “ ATN Board ”) has considered this Agreement and the transactions contemplated hereby and, at a meeting duly called and held, has, upon the recommendation of the ATN Special Committee and as more particularly described in Section 4.5(a) , (i) determined that this Agreement and the transactions contemplated hereby are advisable, fair and reasonable to and in the best interests of the Unaffiliated Unitholders and ATN and (ii) approved and adopted this Agreement and determined to recommend its adoption and approval by the ATN Unitholders; and

     WHEREAS, the parties desire to make certain representations, warranties and agreements in connection with the Merger and also to set forth certain terms and conditions to the Merger.

     NOW, THEREFORE, in consideration of the mutual covenants, representations, warranties and agreements contained herein, and intending to be legally bound hereby, the parties hereto agree as follows:

ARTICLE I

CERTAIN DEFINITIONS

     Section 1.1 Certain Definitions. As used in this Agreement, the following terms shall have the meanings set forth below:

     “ Affiliate ” shall mean, with respect to any Person, those other Persons that, directly or indirectly, control or are controlled by, or are under common control with, such Person; provided, however, that, for purposes of this Agreement, ATN and its Subsidiaries shall not be considered Affiliates of Parent and Parent and its Subsidiaries shall not be considered Affiliates of ATN, unless otherwise expressly stated herein.

     “ Agreement ” shall have the meaning set forth in the introductory paragraph to this Agreement.

     “ Amended Operating Agreement ” shall have the meaning set forth in Section 2.2(c) .

     “ Atlas Energy Management ” shall have the meaning set forth in the introductory paragraph of this Agreement.

     “ ATN ” shall have the meaning set forth in the introductory paragraph of this Agreement.

     “ ATN Board ” shall have the meaning set forth in the recitals to this Agreement.

     “ ATN Change in Recommendation ” shall have the meaning set forth in Section 7.2(a) .

     “ ATN Common Units ” shall mean the common units representing membership interests of ATN having the rights and obligations specified with respect to ATN Common Units in the Operating Agreement.

     “ ATN Conflicts Committee ” shall mean the “Conflicts Committee” as defined in the Operating Agreement.

     “ ATN Credit Agreement ” shall mean the Credit Agreement, dated as of June 29, 2007, and the Loan Documents (as defined therein), as may be amended from time to time, among ATN, as Parent Guarantor, Atlas Energy Operating Company, LLC, as Borrower, JPMorgan Chase Bank, N.A., as Administrative Agent, Wachovia Bank, National Association, as Syndication Agent, and Bank of America, N.A., BNP Paribas, Royal Bank of Canada, and UBS AG, Stamford Branch, as Co-Documentation Agents, and the lenders party thereto.

     “ ATN Director Designees ” shall have the meaning set forth in Section 7.11 .

     “ ATN Disclosure Schedule ” shall mean the Disclosure Schedule delivered by ATN pursuant to Article IV .

     “ ATN Financial Advisor ” shall have the meaning set forth in Section 4.5(b) .

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     “ ATN Long-Term Incentive Plan ” shall mean the Amended and Restated Atlas Energy Resources Long-Term Incentive Plan, amended and restated as of January 14, 2009.

     “ ATN Material Adverse Effect ” shall have the meaning set forth in Section 4.1 .

     “ ATN Meeting ” shall have the meaning set forth in Section 7.2(a) .

     “ ATN Permits ” shall have the meaning set forth in Section 4.7(b) .

     “ ATN Phantom Units ” shall mean the phantom (notional) ATN Common Units granted under the ATN Long-Term Incentive Plan.

     “ ATN Recommendation ” shall have the meaning set forth in Section 7.2(a) .

     “ ATN Restricted Units ” shall mean ATN Common Units that have been granted to employees, directors and consultants of ATN or its Subsidiaries under the ATN Long-Term Incentive Plan and are subject to a “ substantial risk of forfeiture ” within the meaning of Section 83 of the Code.

     “ ATN SEC Reports ” shall have the meaning set forth in Section 4.8(a) .

     “ ATN Special Committee ” shall mean the Special Committee of the ATN Board, consisting solely of independent directors, which directors are also independent of Parent, formed to consider, among other things, the transactions contemplated by this Agreement.

     “ ATN Unit Options ” shall mean all employee and director options to purchase ATN Common Units pursuant to awards granted under the ATN Long-Term Incentive Plan.

     “ ATN Unitholder Approval ” shall have the meaning set forth in Section 8.2 .

     “ ATN Unitholders ” shall mean the holders of ATN Common Units and the holders of the Class A Units, taken together.

     “ Business Day ” shall mean any day which is not a Saturday, Sunday or other day on which banks are authorized or required to be closed in the City of New York.

     “ Certificate ” shall have the meaning set forth in Section 3.1(e) .

     “ Certificate of Merger ” shall have the meaning set forth in Section 2.2(b) . “ Charter Amendment ” shall have the meaning set forth in Section 5.4(b) .

     “ Claim ” shall have the meaning set forth in Section 7.8(a) .

     “ Class A Units ” shall mean the Class A units representing membership interests of ATN having the rights and obligations specified with respect to such Class A Units in the Operating Agreement.

     “ Closing ” shall have the meaning set forth in Section 2.3 .

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     “ Closing Date ” shall have the meaning set forth in Section 2.3 .

     “ Code ” shall mean the Internal Revenue Code of 1986, as amended.

     “ Consent ” shall have the meaning set forth in Section 7.7(b) .

     “ Delaware LLC Act ” shall mean the Delaware Limited Liability Company Act, as amended.

     “ DGCL ” shall mean the Delaware General Corporation Law, as amended.

     “ Effective Time ” shall have the meaning set forth in Section 2.2(b) .

     “ ERISA ” shall mean the Employee Retirement Income Security Act of 1974, as amended.

     “ Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.

     “ Exchange Agent ” shall have the meaning set forth in Section 3.2(a) .

     “ Exchange Agent Agreement ” shall have the meaning set forth in Section 3.2(a) .

     “ Exchange Fund ” shall have the meaning set forth in Section 3.2(a) .

     “ Exchange Ratio ” shall have the meaning set forth in Section 3.1(a) . “ GAAP ” shall have the meaning set forth in Section 4.1 .

     “ Governmental Authority ” shall mean any national, state, local, county, parish or municipal government, domestic or foreign, any agency, board, bureau, commission, court, tribunal, subdivision, department or other governmental or regulatory authority or instrumentality (including any self-regulatory organization), or any arbitrator in any case that has jurisdiction over ATN, Parent or Merger Sub, as the case may be, or any of their respective properties or assets.

     “ HSR Act ” shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder.

     “ Indemnification Expenses ” shall have the meaning set forth in Section 7.8(a) .

     “ Indemnified Party ” shall have the meaning set forth in Section 7.8(a) .

     “ IRS ” shall have the meaning set forth in Section 4.13(c) .

     “ Joint Proxy Statement ” shall have the meaning set forth in Section 7.3(a) .

     “ Laws ” shall mean federal, state, local or foreign laws, statutes, ordinances, rules, regulations, judgments, orders, injunctions, decrees, arbitration awards, agency requirements, licenses and permits of all Governmental Authorities.

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     “ Lien ” shall mean any charge, mortgage, pledge, security interest, restriction, claim, lien, or encumbrance.

     “ Meeting ” shall have the meaning set forth in Section 7.2(b) .

     “ Merger ” shall have the meaning set forth in the recitals to this Agreement.

     “ Merger Consideration ” shall have the meaning set forth in Section 3.1(a) .

     “ Merger Sub ” shall have the meaning set forth in the introductory paragraph in this Agreement.

     “ MIIs ” shall mean the Management Incentive Interests representing membership interests of ATN having the rights and obligations specified with respect to the Management Incentive Interests in the Operating Agreement.

     “ NASDAQ ” shall mean NASDAQ Stock Market LLC.

     “ NYSE ” shall mean the New York Stock Exchange.

     “ Operating Agreement ” shall mean the Amended and Restated Operating Agreement of ATN, dated as of December 18, 2006, as amended.

     “ Parent ” shall have the meaning set forth in the introductory paragraph to this Agreement.

     “ Parent Board ” shall have the meaning set forth in the recitals to this Agreement.

     “ Parent Change in Recommendation ” shall have the meaning set forth in Section 7.2(b) .

     “ Parent Common Stock ” shall mean the Common Stock, par value $0.01 per share, of Parent.

     “ Parent Disclosure Schedule ” shall mean the Disclosure Schedule delivered by Parent pursuant to Article V .

     “ Parent Financial Advisor ” shall have the meaning set forth in Section 5.5(b) .

     “ Parent Material Adverse Effect ” shall have the meaning set forth in Section 5.1 .

     “ Parent Meeting ” shall have the meaning set forth in Section 7.2(b) .

     “ Parent Permits ” shall have the meaning set forth in Section 5.7(b) .

     “ Parent Preferred Stock ” shall have the meaning set forth in Section 5.3(a) .

     “ Parent Recommendation ” shall have the meaning set forth in Section 7.2(b) .

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     “ Parent Restricted Stock ” shall mean shares of Parent Common Stock that have been granted to employees, directors and consultants of Parent or its Subsidiaries under an employee benefit plan and are subject to a “ substantial risk of forfeiture ” within the meaning of Section 83 of the Code.

     “ Parent SEC Reports ” shall have the meaning set forth in Section 5.8(a) .

     “ Parent Stockholder Approval ” shall have the meaning set forth in Section 8.1 .

     “ Person ” or “ person ” shall mean any individual, bank, corporation, partnership, limited liability company, association, joint-stock company, business trust or unincorporated organization.

     “ Registration Statement ” shall have the meaning set forth in Section 7.3(a) .

     “ Representatives ” shall mean with respect to a Person, its directors, officers, employees, agents and representatives, including any investment banker, financial advisor, attorney, accountant or other advisor, agent or representative.

     “ Rights ” shall mean, with respect to any Person, securities or obligations convertible into or exchangeable for, or giving any person any right to subscribe for or acquire, or any options, calls or commitments relating to, equity securities of such Person.

     “ SEC ” shall mean the U.S. Securities and Exchange Commission.

     “ Section 6.2 Subsidiaries ” shall have the meaning set forth in Section 6.2 .

     “ Securities Act ” shall mean the Securities Act of 1933, as amended, and the rules and regulations thereunder.

     “ Stock Issuance ” shall mean the issuance of shares of Parent Common Stock in the Merger pursuant to this Agreement.

     “ Subsidiary ” shall have the meaning ascribed to such term in Rule 1-02 of Regulation S-X under the Securities Act; provided, however, that for purposes of this Agreement (other than in the definition of Parent Material Adverse Effect), ATN and its Subsidiaries shall not be deemed to be Subsidiaries of Parent.

     “ Surviving Entity ” shall have the meaning set forth in Section 2.2(a) .

     “ Takeover Law ” shall mean any “ fair price, ” “ moratorium, ” “ control share acquisition, ” “ business combination ” or any other anti-takeover statute or similar statute enacted under state or federal Law.

     “ Taxes ” shall mean all federal, state, local or foreign taxes, charges, levies or other assessments, including all net income, gross income, gross receipts, sales, use, ad valorem, goods and services, capital, transfer, franchise, profits, license, withholding, payroll, employment, employer health, excise, estimated, severance, stamp, occupation, property, transfer, real

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property transfer or other taxes, custom duties or other similar assessments of any kind whatsoever, together with any interest and any penalties, additions to tax or additional amounts imposed by any taxing authority.

     “ Tax Returns ” shall have the meaning set forth in Section 4.13(a) .

     “ Termination Date ” shall have the meaning set forth in Section 9.1(b)(i) .

     “ Treasury Units ” shall mean ATN Common Units owned by ATN or any of its Subsidiaries at the Effective Time.

     “ Unaffiliated Unitholders ” shall mean the holders of ATN Common Units, other than Parent and its Affiliates, and the officers and directors of Parent and the officers and directors of ATN.

ARTICLE II

THE MERGER; EFFECTS OF THE MERGER

     Section 2.1    Formation of Merger Sub; Accession.

     (a)      Reasonably promptly after the date hereof, and in any event within six (6) Business Days after the date hereof, Parent shall form Merger Sub. Parent shall own 100 percent of the outstanding equity interests of Merger Sub.

     (b)      Promptly after forming Merger Sub, (x) Parent, as the sole member of Merger Sub, shall approve and adopt this Agreement and (y) Parent shall cause Merger Sub to accede to this Agreement by executing a signature page to this Agreement, after which time Merger Sub shall be a party hereto for all purposes set forth herein. Notwithstanding any provision herein to the contrary, the obligations of Merger Sub to perform its covenants hereunder shall commence only at the time of its formation. Prior to the Effective Time, Parent shall take such actions as are reasonably necessary to cause the board of directors of Merger Sub to unanimously approve this Agreement and declare it advisable for Merger Sub to enter into this Agreement and consummate the transactions contemplated by this Agreement.

Section 2.2     The Merger.

     (a)      The Surviving Entity . Subject to the terms and conditions of this Agreement, at the Effective Time, Merger Sub shall merge with and into ATN, the separate existence of Merger Sub shall cease and ATN shall survive and continue to exist as a Delaware limited liability company (ATN, as the surviving limited liability company in the Merger, sometimes being referred to herein as the “ Surviving Entity ”), such that following the Merger, ATN will be a wholly owned subsidiary of Parent.

     (b)      Effectiveness and Effects of the Merger . Subject to the satisfaction or waiver of the conditions set forth in Article VIII in accordance with this Agreement, the Merger shall become effective upon the later to occur of the filing in the office of the

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Secretary of State of the State of Delaware of a properly executed certificate of merger (the “ Certificate of Merger ”) or such later date and time as may be set forth in the Certificate of Merger (the “ Effective Time ”), in accordance with the Delaware LLC Act. The Merger shall have the effects prescribed in the Delaware LLC Act.

     (c)       Operating Agreement . At the Effective Time, the Operating Agreement will be amended to be substantially in such form as determined by Parent (the “ Amended Operating Agreement ”); provided that the provisions related to exculpation and indemnification shall remain the same as in effect as of the date of this Agreement in accordance with Section 7.8(c) .

     (d)      Directors of the Surviving Entity . The individuals who are the directors of Merger Sub immediately prior to the Effective Time shall be the directors of the Surviving Entity as of the Effective Time, until their respective successors are duly elected or appointed and qualified or their earlier death, resignation or removal in accordance with the Amended Operating Agreement of the Surviving Entity.

     (e)      Officers of the Surviving Entity . The officers of ATN immediately prior to the Effective Time shall be the officers of the Surviving Entity as of the Effective Time, until their respective successors are duly elected or appointed and qualified or their earlier death, resignation or removal in accordance with the Amended Operating Agreement of the Surviving Entity.

     (f)      Partnership Status . Immediately following the Effective Time, ATN will continue to be a partnership for U.S. federal income tax purposes, and toward that end Parent will continue to hold the ATN Common Units and Atlas Energy Management will continue to hold the Class A Units and MIIs held by Parent and Atlas Energy Management, as applicable, immediately prior to the Effective Time, in each case subject to the terms and conditions of the Amended Operating Agreement.

                    Section 2.3      Closing.   Subject to the satisfaction or waiver of the conditions as set forth in Article VIII in accordance with this Agreement, the filing of the Certificate of Merger with the Delaware Secretary of State and the closing of the Merger and the other transactions contemplated hereby (the “ Closing ”) shall occur on (a) the third Business Day after the day on which all of the conditions set forth in Article VIII (other than those that by their nature are to be satisfied by actions taken at Closing, but subject to their satisfaction or waiver) shall have been satisfied or waived in accordance with the terms of this Agreement or (b) such other date to which the parties may agree in writing. The date on which the Closing occurs is referred to as the “ Closing Date .” The Closing of the transactions contemplated by this Agreement shall take place at the offices of Wachtell, Lipton, Rosen & Katz, 51 West 52 ^nd Street, New York, New York 10019, at 10:00 a.m. local time on the Closing Date.

ARTICLE III

MERGER CONSIDERATION; EXCHANGE PROCEDURES

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     Section 3.1      Merger Consideration. Subject to the provisions of this Agreement:

     (a)      By virtue of the Merger and without any action by Parent, at the Effective Time each ATN Common Unit issued and outstanding immediately prior to the Effective Time (other than Treasury Units and ATN Common Units held by Parent or its Subsidiaries (including Atlas Energy Management)), including ATN Restricted Units in accordance with Section 3.6(b) , shall be converted into the right to receive 1.16 shares of Parent Common Stock (the “ Exchange Ratio ”). The number of shares of Parent Common Stock issued pursuant to this Section 3.1(a) shall be referred to herein as the “ Merger Consideration .”

     (b)      By virtue of the Merger, all of the membership interests of Merger Sub outstanding immediately prior to the Effective Time shall be cancelled.

     (c)      By virtue of the Merger, each Treasury Unit outstanding immediately prior to the Effective Time shall cease to be outstanding and shall be cancelled without payment of any consideration therefor, and no shares of capital stock of Parent or other consideration shall be delivered in exchange therefore.

     (d)      Each Class A Unit and each MII held by Atlas Energy Management immediately prior to the Effective Time, and each ATN Common Unit held by Parent or its Subsidiaries immediately prior to the Effective Time will continue to be held by Atlas Energy Management and Parent or its Subsidiaries, as applicable, after the Effective Time.

     (e)      All ATN Common Units (other than ATN Common Units held by Parent), when converted in the Merger, shall cease to be outstanding and shall automatically be canceled and cease to exist. Each holder of a certificate (a “ Certificate ”) previously representing any such ATN Common Units shall cease to have any rights with respect thereto, except the right to receive (i) the Merger Consideration and (ii) any cash to be paid in lieu of any fractional shares of Parent Common Stock in accordance with Section 3.2(d) , in each case to be issued or paid in consideration therefor upon the surrender of such Certificates in accordance with Section 3.2 .

Section 3.2      Exchange of Certificates.

     (a)      Exchange Agent; Deposit of Consideration . Prior to the Effective Time, Parent shall appoint a commercial bank or trust company reasonably acceptable to ATN, pursuant to an agreement (the “ Exchange Agent Agreement ”) to act as exchange agent (the “ Exchange Agent ”) hereunder. At or prior to the Effective Time, Parent shall deposit or shall cause to be deposited the shares of Parent Common Stock to be issued as Merger Consideration with the Exchange Agent, for the benefit of the holders of ATN Common Units and which shall be used to make all deliveries of shares of Parent Common Stock as required by and pursuant to this Article III . Parent agrees to make available to the Exchange Agent, from time to time as needed, cash sufficient to make payments in lieu of any fractional shares of Parent Common Stock pursuant to Section 3.2(d) . Any cash

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and shares of Parent Common Stock deposited with the Exchange Agent (including as payment for any fractional shares of Parent Common Stock in accordance with Section 3.2(d) ) shall hereinafter be referred to as the “ Exchange Fund .” The Exchange Agent shall, pursuant to irrevocable instructions delivered by Parent at or prior to the Effective Time, deliver the Merger Consideration contemplated to be paid for ATN Common Units pursuant to this Agreement, through the Merger, out of the Exchange Fund. Except as contemplated by this Section 3.2 , the Exchange Fund shall not be used for any other purpose.

     (b)      Exchange Procedures . Promptly after the Effective Time, Parent shall instruct the Exchange Agent to mail to each record holder of Certificates (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss and title to the Certificates shall pass, only upon proper delivery of the Certificates to the Exchange Agent, and shall be in customary form and agreed to by Parent and ATN prior to the Effective Time) and (ii) instructions for use in effecting the surrender of the Certificates in exchange for the Merger Consideration payable in respect of the ATN Common Units represented by such Certificates. Promptly after the Effective Time, upon surrender of Certificates for cancellation to the Exchange Agent together with such letters of transmittal, properly completed and duly executed, and such other documents as may be required pursuant to such instructions, the holders of such Certificates shall be entitled to receive in exchange therefor (A) at Parent’s election either (i) certificate(s) evidencing shares of Parent Common Stock or (ii) evidence of shares in book-entry form representing, in the aggregate, the whole number of shares of Parent Common Stock that such holder has the right to receive pursuant to this Article III (after taking into account all ATN Common Units then held by such holder) and (B) a check in the amount equal the cash payable in lieu of any fractional shares of Parent Common Stock pursuant to Section 3.2(d) . No interest shall be paid or accrued on any Merger Consideration, cash in lieu of fractional shares or on any unpaid dividends and distributions payable to holders of Certificates. In the event of a transfer of ownership of ATN Common Units that is not registered in the transfer records of ATN, the Merger Consideration payable in respect of such ATN Common Units may be paid to a transferee if the Certificate representing such ATN Common Units is presented to the Exchange Agent, accompanied by all documents required to evidence and effect such transfer and the Person requesting such exchange shall pay to the Exchange Agent in advance any transfer or other Taxes required by reason of the delivery of the Merger Consideration in any name other than that of the registered holder of the Certificate surrendered, or shall establish to the satisfaction of the Exchange Agent that such Taxes have been paid or are not payable. Until surrendered as contemplated by this Section 3.2 , each Certificate shall be deemed at any time after the Effective Time to represent only the right to receive upon such surrender the Merger Consideration without interest payable in respect of the ATN Common Units represented by such Certificate and any distributions to which such holder is entitled pursuant to Section 3.3 .

     (c)      No Further Rights in ATN Common Units . The Merger Consideration delivered or issued, as the case may be, in accordance with the terms hereof (including any cash paid pursuant to Section 3.2(d) or Section 3.3 ) shall be deemed to have been issued in full satisfaction of all rights pertaining to such ATN Common Units.

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     (d)      Fractional Shares of Parent Common Stock . No certificates or scrip of the shares of Parent Common Stock representing fractional shares of Parent Common Stock or book entry credit of the same (after aggregating all fractional shares of Parent Common Stock to be received by such holder) shall be issued upon the surrender for exchange of Certificates in the Merger, and such fractional interests will not entitle the owner thereof to vote or to have any rights as a holder of any shares of Parent Common Stock. Notwithstanding any other provision of this Agreement, each holder of ATN Common Units (including ATN Restricted Units) exchanged in the Merger who would otherwise have been entitled to receive a fraction of a share of Parent Common Stock (after taking into account all Certificates delivered by such holder) shall receive, in lieu thereof, cash (without interest and rounded up to the nearest whole cent) in an amount equal to the product of (i) the closing sale price of the shares of Parent Common Stock on NASDAQ as reported by The Wall Street Journal on the trading day immediately preceding the date on which the Effective Time shall occur and (ii) the fraction of a share of Parent Common Stock that such holder would otherwise be entitled to receive pursuant to this Article III . As promptly as practicable after the determination of the amount of cash, if any, to be paid to holders of fractional interests, the Exchange Agent shall so notify Parent, and it shall, or shall cause the Surviving Entity to, deposit such amount with the Exchange Agent and shall cause the Exchange Agent to forward payments to such holders of fractional interests subject to and in accordance with the terms hereof. No dividend or distribution with respect to Parent Common Stock shall be payable on or with respect to any fractional share and such fractional share interests shall not entitle the owner thereof to any rights of a shareholder of Parent.

     (e)      Termination of Exchange Fund with Respect to Merger . Any portion of the Exchange Fund constituting shares of Parent Common Stock that remains undistributed to the holders of ATN Common Units in the Merger after 180 days following the Effective Time shall be delivered to Parent upon demand and, from and after such delivery, any former holders of ATN Common Units who have not theretofore complied with this Article III shall thereafter look only to Parent for the Merger Consideration payable in the Merger in respect of such ATN Common Units, and any cash in lieu of fractional shares of Parent Common Stock to which they are entitled pursuant to Section 3.2(d) , without any interest thereon. Any amounts remaining unclaimed by holders of ATN Common Units immediately prior to such time as such amounts would otherwise escheat to or become the property of any Governmental Authority shall, to the extent permitted by applicable Law, become the property of Parent or ATN, as the case may be, free and clear of any Liens, claims or interest of any Person previously entitled thereto.

     (f)      No Liability . None of Parent, ATN or the Surviving Entity shall be liable to any holder of ATN Common Units for any shares of Parent Common Stock (or distributions with respect thereto) or cash from the Exchange Fund delivered to a public official pursuant to any abandoned property, escheat or similar Law.

     (g)      Lost Certificates . If any Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Certificate to be lost, stolen or destroyed and, if required by ATN or Parent, the posting

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by such Person of a bond, in such reasonable amount as ATN or Parent may direct, as indemnity against any claim that may be made against it with respect to such Certificate, the Exchange Agent shall pay in exchange for such lost, stolen or destroyed Certificate the Merger Consideration payable in respect of the ATN Common Units represented by such lost, stolen or destroyed Certificate and any distributions to which the holders thereof are entitled pursuant to Section 3.3 .

     (h)      Withholding . Each of ATN, Parent, the Surviving Entity and the Exchange Agent shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of ATN Common Units such amounts as ATN, Parent, the Surviving Entity or the Exchange Agent is required to deduct and withhold under the Code or any provision of state, local, or foreign Tax Law, with respect to the making of such payment. To the extent that amounts are so withheld, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of ATN Common Units in respect of whom such deduction and withholding was made by ATN, Parent, the Surviving Entity or the Exchange Agent, as the case may be.

                  Section 3.3      Rights As Unitholders; Unit Transfers. From and after the Effective Time, holders of ATN Common Units shall cease to be, and shall have no rights as, members of ATN, and shall have no rights in respect of ATN Common Units, other than the right to receive (a) any dividend or other distribution with respect to such ATN Common Units with a record date occurring prior to the Effective Time that may have been declared or made by ATN on such ATN Common Units in accordance with the terms of this Agreement or prior to the date hereof and which remain unpaid at the Effective Time and (b) the consideration provided under this Article III . After the Effective Time, there shall be no transfers on the unit transfer books of the ATN Common Units.

                  Section 3.4      Anti-Dilution Provisions. In the event of any subdivisions, reclassifications, recapitalizations, splits, combinations or dividends in the form of equity interests with respect to the Parent Common Stock or the ATN Common Units, the number of shares of Parent Common Stock to be issued in the Merger, the average closing sales prices of the shares of Parent Common Stock determined in accordance with Section 3.2(d) and the Exchange Ratio will be correspondingly adjusted.

                  Section 3.5      Options, Phantom Units and Restricted Units.

     (a)      At the Effective Time, automatically and without any action on the part of the holder thereof, Parent will assume each outstanding ATN Unit Option, and such ATN Unit Option will become an option (i) to purchase that number of shares of Parent Common Stock (calculated on an aggregate basis and rounded down to the nearest whole share of Parent Common Stock) obtained by multiplying the number of ATN Common Units issuable upon the exercise of such ATN Unit Option by the Exchange Ratio, (ii) at an exercise price per share (calculated on an aggregate basis and rounded up to the nearest whole penny) equal to the per share exercise price of such ATN Unit Option divided by the Exchange Ratio, and (iii) otherwise upon the same terms and conditions as such outstanding ATN Unit Options; provided, however, that the exercise price and the

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number of shares purchasable pursuant to such ATN Unit Option and the terms and conditions of exercise of such ATN Unit Option will not be treated by Parent or ATN as the grant of a new stock right or a change in the form of payment within the meaning of Section 409A of the Code and the rules and regulations thereunder.

     (b)       At the Effective Time, each outstanding grant of ATN Phantom Units shall be assumed by Parent and converted into a grant of phantom units denominated in that number of shares of Parent Common Stock equal to the number of ATN Common Units to which such grant of ATN Phantom Units was subject at the time of such assumption multiplied by the Exchange Ratio. At the Effective Time, all outstanding ATN Restricted Units heretofore granted shall be converted pursuant to Section 3.1(a) , at the Exchange Ratio, into Parent Restricted Stock. Any fractional share of Parent Restricted Stock, and any fractional Parent phantom unit, shall be rounded up to the nearest whole share of Parent Common Stock. Each share of Parent Common Stock and each Parent phantom unit in respect of which an ATN Restricted Unit or ATN Phantom Unit, respectively, was so assumed and converted shall be subject to, and shall vest upon, the terms and conditions that are the same as those of the applicable ATN Restricted Unit or ATN Phantom Unit. Promptly after the Effective Time, Parent will provide each holder of ATN Restricted Units and ATN Phantom Units with a notice describing the assumption and conversion of such awards.

     (c)       With the exception of those Persons who hold ATN Unit Options, ATN Restricted Units and ATN Phantom Units, no Person shall have any right under any plan, program, agreement or arrangement with respect to ATN Common Units, or for the issuance or grant of any right of any kind, contingent or accrued, to receive benefits or compensation measured by the value of a number of ATN Common Units at and after the Effective Time.

     (d)       Parent will take all corporate actions necessary to reserve for issuance a sufficient number of shares of Parent Common Stock for delivery upon exercise of Parent Stock Options, and vesting of Parent phantom units, in respect of the ATN Unit Options and ATN Phantom Units that Parent assumes under Sections 3.6(a) and 3.6(b) .

     (e)       On or prior to the 30th day following the Effective Time, Parent will file (or will have filed) a registration statement on Form S-8 (or any successor or other appropriate forms) with respect to the shares of Parent Common Stock subject to ATN Unit Options and will use its reasonable efforts to maintain the effectiveness of such registration statement (and maintain the current status of the prospectus or prospectuses contained therein) for as long as such options remain outstanding.

     (f)       Parent will either, at its option, (i) provide for the grant of assumed and converted equity compensation awards described above in this Section 3.6 under equity compensation plans of Parent, or (ii) assume, as of the Effective Time, the ATN Long-Term Incentive Plan, and provide for the grant or continuation of such awards thereunder. Upon assumption of such plans, such amendments thereto as may be required to reflect the Merger and the requirements of Section 3.6(a) will be deemed to have been made.

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ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF ATN

           ATN hereby represents and warrants to Parent and Merger Sub that, except as otherwise set forth (i) in ATN’s Disclosure Schedules to this Agreement (the “ ATN Disclosure Schedule ”) (it being agreed that disclosure of any item in any section of the ATN Disclosure Schedule shall also be deemed to be disclosed with respect to any other section of this Article IV to which the relevance of such item is reasonably apparent on its face) or (ii) in the ATN SEC Reports (excluding any forward-looking statements included therein or any statements of a cautionary nature that are not historical facts in any risk factor section of such documents) filed with the SEC prior to the date of this Agreement:

           Section 4.1       Organization and Qualification. ATN is a limited liability company duly organized and validly existing in good standing under the Laws of the State of Delaware. ATN has the requisite limited liability power and authority to own or lease its properties and to carry on its business as it is now being conducted and is duly licensed or qualified to do business in each jurisdiction in which the nature of the business conducted by it or the character of the properties owned or leased by it makes such licensing or qualification necessary, except where the failure to be so licensed or qualified would not, individually or in the aggregate, have an ATN Material Adverse Effect (as defined below). When used in connection with ATN or any of its Subsidiaries, the term “ ATN Material Adverse Effect ” shall mean any state of facts, circumstance, change or effect that is materially adverse to the business, financial condition or results of operations of ATN and its Subsidiaries, taken as a whole, except that none of the following (or the effects thereof) will be deemed to constitute, and none of the following will be taken into account in determining whether there has been or if there is reasonably likely to be, an ATN Material Adverse Effect: (i) general economic conditions, changes in securities markets (including any disruption thereof), regulatory or political conditions, including any engagement in hostilities, whether or not pursuant to the declaration of a national emergency or war, the occurrence of any military or terrorist attack or a general economic recession, natural disasters or other force majeure events, in each case in the United States or elsewhere, except to the extent that such conditions, changes or events affect ATN in a materially disproportionate and adverse manner when compared to companies of similar size operating in the same industry or market as ATN; (ii) changes in or events or conditions generally affecting the oil and gas exploration and development industry (including changes in commodity prices and general market prices), except to the extent that such conditions, changes or events affect ATN in a materially disproportionate and adverse manner when compared to companies of similar size operating in the same industry or market as ATN; (iii) changes in Laws or U.S. generally accepted accounting principles (“ GAAP ”) or interpretations thereof, except to the extent that such changes affect ATN in a materially disproportionate and adverse manner when compared to companies of similar size operating in the same industry or market as ATN; (iv) the announcement or pendency of this Agreement, any actions taken in compliance with this Agreement or the consummation of the Merger; (v) any failure by ATN to meet estimates of revenues or earnings for any period ending after the date of this Agreement (provided that the underlying causes of any such failure may be considered in determining whether an ATN Material Adverse Effect has occurred); (vi) the downgrade in rating of any debt securities of ATN by Standard & Poor’s Rating Group, Moody’s Investor Services, Inc. or Fitch Ratings

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(provided that the underlying causes of any such downgrade may be considered in determining whether an ATN Material Adverse Effect has occurred); (vii) the taking of any action (or omitting to take any action) required or contemplated by this Agreement or the taking of any action (or omitting to take any action) that Parent, in its capacity as a party to this Agreement and not in any other capacity with respect to ATN or Atlas Energy Management, has requested or to which Parent has consented; or (viii) changes in the price or trading volume of the ATN Common Units (provided that the underlying causes of any such changes may be considered in determining whether an ATN Material Adverse Effect has occurred).

                       Section 4.2       Subsidiaries. Each Subsidiary of ATN (i) is duly organized and validly existing under the Laws of its jurisdiction of organization, (ii) has the requisite corporate or other business entity power and authority to own or lease its properties and to carry on its business as it is now being conducted and (iii) is duly licensed or qualified to do business in each jurisdiction in which the nature of the business conducted by it or the character of the properties owned or leased by it makes such licensing or qualification necessary, in each case, except as would not, individually or in the aggregate, have an ATN Material Adverse Effect. Other than with respect to ATN’s Subsidiaries, ATN does not directly or indirectly own any equity interest in, or any interest convertible into or exchangeable or exercisable for, any equity interest in, any corporation, partnership, joint venture or other business entity, other than equity interests held for investment that are not, in the aggregate, material to ATN. All of ATN’s equity interests in its Subsidiaries, whether directly or indirectly owned, are held free and clear of any Lien (other than in favor of ATN or any of its Subsidiaries), no equity interests of any of ATN’s Subsidiaries are or may become required to be issued by reason of any Rights, there are no contracts, commitments, understandings or arrangements by which any of ATN’s Subsidiaries is or may be bound to sell or otherwise transfer any equity interests of any such Subsidiaries, there are no contracts, commitments, understandings, or arrangements relating to ATN’s rights to vote or to dispose of such equity interests, and all of the equity interests of each such Subsidiary held by ATN or its Subsidiaries are fully paid and nonassessable and are owned by ATN or its Subsidiaries free and clear of any Liens.

                        Section 4.3       Capitalization.

     (a)       As of March 31, 2009, there were 63,381,249 ATN Common Units issued and outstanding (46,905 of which were ATN Restricted Units), and all of such ATN Common Units and the member interests represented thereby were duly authorized and validly issued in accordance with the Operating Agreement and are fully paid (to the extent required under the Operating Agreement) and nonassessable (except as such nonassessability may be affected by Sections 18-607 and 18-804 of the Delaware LLC Act). As of March 31, 2009, Atlas Energy Management owned 1,293,496 Class A Units, representing all of the issued and outstanding Class A Units and a 2% equity interest in ATN, and all of the MIIs, and such Class A Units and MIIs were duly authorized and validly issued in accordance with the Operating Agreement.

     (b)       As of the date hereof, there are no interests of ATN’s equity securities authorized and reserved for issuance, ATN does not have any Rights issued or outstanding with respect to its equity securities, and ATN does not have any commitment to authorize, issue or sell any such equity securities or Rights, except pursuant to this

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Agreement. Since December 31, 2008, ATN has not issued any interests of ATN’s equity securities or Rights in respect thereof or reserved any interests of ATN’s equity securities for such purposes except pursuant to plans or commitments set forth in Section 4.3(b) of the ATN Disclosure Schedule. There are no outstanding contractual obligations of ATN or any of its Subsidiaries to repurchase, redeem or otherwise acquire any equity interests of ATN or any of its Subsidiaries.

     (c)       The number of ATN Common Units that are issuable and reserved for issuance upon exercise of ATN Unit Options and the vesting of ATN Phantom Units as of the date hereof are set forth in Section 4.3(c) of the ATN Disclosure Schedule.

     (d)       Other than with respect to the ATN Long-Term Incentive Plan, neither ATN nor any of its Subsidiaries, (i) sponsors, maintains, directly contributes or is obligated to directly contribute to, any Benefit Plan for the benefit of any employee, former employee, director or former director of ATN or any of its Subsidiaries or (ii) otherwise provides or is obligated to provide benefits to any current, former or future employee, officer or director of ATN or any of its Subsidiaries or to any beneficiary or dependent thereof under any Benefit Plan. For purposes of the foregoing, a “Benefit Plan” means any material “employee benefit plan” as defined in Section 3(3) of ERISA, whether or not subject to ERISA, material employment, consulting, bonus, incentive or deferred compensation, vacation, stock option or other equity-based, severance, termination, retention, change of control, profit-sharing, fringe benefit or other similar material plan, program, agreement or commitment, whether written or unwritten; provided, however, that “Benefit Plan” shall not include any employee benefit plan that is sponsored by Parent.

Section 4.4       Authority; Due Authorization; Binding Agreement; Approval.

     (a)       ATN has all requisite limited liability power and authority to enter into this Agreement and to perform its obligations under this Agreement subject, with respect to the Merger, to the adoption of this Agreement by the affirmative vote of the ATN Unitholders and the Class A Units, to the extent required by the Operating Agreement and applicable Law.

     (b)       The execution, delivery and performance of this Agreement by ATN and the consummation by ATN of the transactions contemplated hereby have been duly and validly authorized by all requisite limited liability action on the part of ATN (other than receipt of the ATN Unitholder Approval and the filing of appropriate merger documents as required by the Delaware LLC Act).

     (c)       This Agreement has been duly executed and delivered by ATN and, assuming the due authorization, execution and delivery hereof by Parent, constitutes a valid and binding obligation of ATN, enforceable against ATN in accordance with its terms, except as limited by bankruptcy, insolvency, moratorium, fraudulent transfer, reorganization and other Laws of general applicability relating to or affecting the rights or remedies of creditors and by general equitable principles (whether considered in a proceeding in equity or at Law).

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      Section 4.5       ATN Board Recommendation; Opinion of ATN Financial Advisor.

     (a)       At a meeting duly called and held, the ATN Special Committee, the members of which constitute a majority of the members of the ATN Conflicts Committee, determined by unanimous vote of all of its members that this Agreement and the transactions contemplated hereby are advisable, fair and reasonable to and in the best interests of the Unaffiliated Unitholders and ATN, and resolved to recommend that the full ATN Board adopt this Agreement, approve the transactions contemplated hereby, and recommend the adoption of this Agreement and approval of the transactions contemplated hereby by the ATN Unitholders. At a meeting duly called and held, the ATN Board ((x) by unanimous vote of all of its members, other than Edward Cohen, Jonathan Cohen, Bruce Wolf and Richard Weber, who recused themselves, and (y) separately by the unanimous approval of all of the independent members of the ATN Board, with Bruce Wolf and Richard Weber present and abstaining from the vote), upon the recommendation of the ATN Special Committee, (i) determined that this Agreement and the transactions contemplated hereby are advisable, fair and reasonable to and in the best interests of the Unaffiliated Unitholders and ATN and (ii) approved and adopted this Agreement and determined to recommend its adoption and approval by the ATN Unitholders. The approval of the members of the Special Committee, which members constitute a majority of the members of the ATN Conflicts Committee, constitutes approval of a majority of the members of the ATN Conflicts Committee.

     (b)       UBS Securities LLC (the “ ATN Financial Advisor ”) has orally delivered to the ATN Special Committee its opinion, the written form of which, dated the same date, to be delivered subsequently, to the effect that, as of the date of such opinion and based upon and subject to the matters set forth therein, the Exchange Ratio is fair, from a financial point of view, to the holders of ATN Common Units (other than as set forth in such opinion). A copy of such opinion shall be provided to Parent, solely for informational purposes, promptly following its delivery in written form to the ATN Special Committee.

      Section 4.6       No Violation; Consents.

     (a)       The execution and delivery of this Agreement by ATN does not, and the consummation by ATN of the transactions contemplated hereby will not (i) violate the Operating Agreement (assuming that the ATN Unitholder Approval is obtained), (ii) constitute a breach or violation of, or a default (or an event which, with notice or lapse of time or both, would constitute such a default) under any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which ATN or any of its Subsidiaries is a party or by which any of them or any of their respective properties are bound, (iii) (assuming that the consents and approvals referred to in Section 4.6(b) are duly and timely made or obtained and that, to the extent required by applicable Law, the adoption of this Agreement by the affirmative vote of ATN Unitholders is obtained) violate any Law applicable to ATN or any of its Subsidiaries or any of their properties, (iv) result in the creation or imposition of any Lien upon any property of ATN or its Subsidiaries pursuant to the agreements and instruments referred to in clause (ii) or (v) cause the transactions contemplated by this Agreement to be subject to Takeover Laws,

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except, in the case of clause (ii), (iii), (iv) or (v), for such conflicts, breaches, violations, defaults, Liens or subjection, that would not, individually or in the aggregate, have an ATN Material Adverse Effect.

     (b)       Except for (i) expiration or termination of any waiting period applicable to the transactions contemplated by this Agreement under the HSR Act, (ii) compliance with any applicable requirements of (A) the Securities Act, the Exchange Act and any other applicable U.S. state or federal securities Laws and (B) the NYSE and NASDAQ, (iii) filing or recordation of the Certificate of Merger or other appropriate documents as required by the Delaware LLC Act or applicable Law of other states in which ATN is qualified to do business, (iv) any governmental authorizations, consents, approvals or filings necessary for transfers of permits and licenses or made in connection with the transfer of interests in or the change of control of ownership in oil and gas properties and (v) such other authorizations, consents, approvals or filings the failure of which to obtain or make would not, individually or in the aggregate, have an ATN Material Adverse Effect, no authorization, consent or approval of or filing with any Governmental Authority is required to be obtained or made by ATN for the execution and delivery by ATN of this Agreement or the consummation by ATN of the transactions contemplated hereby.

     Section 4.7 Compliance.

     (a)       Neither ATN nor any of its Subsidiaries is in (i) violation of the Operating Agreement, its certificate of formation or other equivalent governing documents, as applicable; (ii) violation of any applicable Law, except that no representation or warranty is made in this Section 4.7 with respect to Laws relating to Tax, which are addressed exclusively in Sections 4.13 ; or (iii) default in the performance of any obligation, agreement, covenant or condition under any indenture, mortgage, deed of trust, loan agreement, lease or other agreement or instrument to which ATN or any of its Subsidiaries is a party or by which any of them or any of their respective properties are bound; except, in the case of clauses (ii) and (iii), for such violations or defaults that, individually or in the aggregate, would not have an ATN Material Adverse Effect.

     (b)       Except as would not have, individually or in the aggregate, an ATN Material Adverse Effect or with respect to properties or operations that have been sold or otherwise disposed of or are reflected as having been sold or otherwise disposed of in the ATN SEC Reports filed prior to the date hereof, as of the date hereof, (i) ATN and its Subsidiaries are in possession of all franchises, tariffs, grants, authorizations, licenses, permits, easements, variances, exceptions, consents, certificates, approvals and orders of any Governmental Authority necessary for ATN and its Subsidiaries to own, lease and operate their properties and assets or to carry on their businesses as they are now being conducted (the “ ATN Permits ”), (ii) all ATN Permits are in full force and effect, (iii) no suspension or cancellation of any of the ATN Permits is pending or, to the knowledge of ATN, threatened, (iv) ATN and its Subsidiaries are not, and since January 1, 2009 have not been, in violation or breach of, or default under, any ATN Permit and (v) to the knowledge of ATN, no event or condition has occurred which would reasonably be

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expected to result in a violation or breach of any ATN Permit (in each case, with or without notice or lapse of time or both).

     Section 4.8       SEC Filings; Financial Statements.

     (a)       ATN has filed all reports, schedules, registration statements, definitive proxy statements and exhibits to the foregoing documents required to be filed by it with the SEC since January 1, 2007 (collectively, the “ ATN SEC Reports ”). As of their respective dates, (i) the ATN SEC Reports complied in all material respects with the applicable requirements of the Securities Act or the Exchange Act, as the case may be, and (ii) none of the ATN SEC Reports, as finally amended prior to the date hereof, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. No ATN Subsidiary is currently required to file any form, report or other document with the SEC under Section 13(a) or 15(d) of the Exchange Act.

     (b)       The historical financial statements of ATN, together with the related schedules and notes thereto, included in ATN SEC Reports present fairly, in all material respects, the consolidated financial position of ATN and its consolidated subsidiaries at the dates indicated, and the consolidated results of operations and consolidated cash flows of ATN and its consolidated subsidiaries for the periods specified; and such historical financial statements have been prepared in conformity with GAAP applied on a consistent basis throughout the periods involved, in all material respects, except as noted therein.

     Section 4.9       No Undisclosed Liabilities. Except (i) as reflected or reserved against in ATN’s consolidated balance sheet (or notes thereto) as of December 31, 2008 included in its Annual Report on Form 10-K for the year ended December 31, 2008, (ii) for liabilities and obligations arising under this Agreement and transactions contemplated by this Agreement, and (iii) for liabilities and obligations incurred since December 31, 2008 in the ordinary course of business consistent with past practice, neither ATN nor any Subsidiary of ATN has any liabilities or obligations of a nature required by GAAP to be reflected in a consolidated balance sheet (or notes thereto) that would have, individually or in the aggregate, an ATN Material Adverse Effect.

     Section 4.10       Absence of Certain Changes or Events. Since December 31, 2008, except as contemplated by this Agreement or disclosed in the ATN SEC Reports filed prior to the date hereof, ATN has conducted its businesses only in the ordinary course and there has not been (i) any event having, individually or in the aggregate, an ATN Material Adverse Effect, (ii) through the date of this Agreement, any change by ATN in its accounting methods, principles or practices materially affecting the consolidated assets, liabilities or results of operations of ATN and its consolidated Subsidiaries, except insofar as may have been required by a change in GAAP (iii) through the date of this Agreement, any change or revocation or filing of any material Tax election or any settlement or compromise of any material Tax liability; or (iv) through the date of this Agreement, any declaration, setting aside or payment of any dividend or distribution in respect of any equity interests of ATN or any redemption, purchase or

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other acquisition for value of any of its equity interests, other than regular quarterly ca