Exhibit 10.5(a)
AMENDMENT TO
EMPLOYMENT
AGREEMENT
AMENDMENT , dated as of December 31, 2008 (the
“ Amendment ”), between Atlas America, Inc. a
Delaware corporation (the “ Company ”), and
Edward E. Cohen (“ Executive ”).
RECITALS
The Company and Executive previously
entered into an Employment Agreement, dated as of May 14, 2004
(the “ Employment Agreement ”), which sets forth
the terms and conditions of Executive’s employment with the
Company;
The Company and Executive desire to
amend the Employment Agreement to comply with the requirements of
the section 409A of the Internal Revenue Code, as well as to make
certain additional changes to the Employment Agreement;
and
Section 11(a) of the Employment
Agreement provides that the Employment Agreement may be amended
upon written amendment approved by the board of directors of the
Company and executed on its behalf by a duly authorized officer and
by Executive.
NOW, THEREFORE
, the Company and Executive hereby
agree that, effective January 1, 2009, the Employment
Agreement shall be amended as follows:
1. A new subsection (e) is
hereby added to Section 1.9 of the Employment Agreement as
follows:
“(e) Notwithstanding anything
herein to the contrary, all payments made to Executive pursuant to
the SERP and this Section 1.9, shall be made in accordance
with section 409A of the Internal Revenue Code of 1986, as amended
(the “ Code ”) and its corresponding regulations
and the SERP established by the Company to provide payment of the
SERP Retirement Benefit.”
2. The last sentence of
Section 2.1(a) of the Employment Agreement is hereby amended
to read as follows:
“In addition, Executive may
initiate a termination of employment by resigning under this
Section 2.1 for Good Reason (as defined in Section 4);
provided, however, that Executive shall give the Company not less
than thirty (30) days’ prior written notice of such
resignation and the Company shall be given the opportunity to cure
any condition susceptible to cure, as described in
Section 4(c) below.”
3. Section 2.1(c)(ii) is hereby
deleted and replaced with new Sections 2.1(c)(ii), (iii) and
(iv) as follows:
“(ii) During the thirty-six
(36)-month period following Executive’s date of termination
(the “ Separation Period ”), Executive may elect
continued health coverage
under the Company’s health
plan in which Executive participated at the date of termination, as
in effect from time to time, provided that Executive shall be
responsible for paying the full monthly cost of such coverage. The
monthly cost shall be the premium determined for purposes of
continued coverage under section 4980B(f)(4) of the Code (“
COBRA Premium ”) in effect from time to
time.
(iii) The Company shall pay
Executive a lump sum amount equal to the COBRA Premium cost of
continued health coverage under the Company’s health plan for
the Separation Period, less the premium charge that is paid by the
Company’s employees for such coverage, as in effect on
Executive’s date of termination. The cash payments under this
subsection (iii) shall be increased by a tax gross up payment
equal to Executive’s income and FICA tax imposed on the
payment under this subsection (iii). Payment shall be made within
fifteen (15) days after the date of termination.
(iv) The Company shall pay Executive
a lump sum amount equal to the cost that the Company would incur
for life insurance coverage (as calculated below) for the
Separation Period as if Executive had continued in employment and
participated in the Company’s life insurance plan, less the
premium charge that is paid by active Company employees for such
coverage as in effect at Executive’s date of termination. The
monthly cost of life insurance coverage shall be calculated based
on the Company’s monthly cost of such coverage on
Executive’s date of termination. The cash payment under this
subsection (iv) shall be increased by a tax gross up payment
equal to Executive’s income and FICA tax imposed on the
payment under this subsection (iv).”
4. Section 2.3 of the
Employment Agreement is hereby amended in its entirety to read as
follows:
“2.3 Disability . The
Company may terminate Executive’s employment if Executive has
been unable to perform the material duties of his employment for a
period of one hundred eighty (180) days in any twelve
(12) month period because of physical or mental injury or
illness (“ Disability ”); provided, however,
that the Company shall continue to pay Executive’s Base
Salary until the Company acts to terminate Executive’s
employment. Executive agrees, in the event of a dispute under this
Section 2.3 relating to Executive’s Disability, to
submit to a physical examination by a licensed physician jointly
selected by the Board and Executive. If the Company terminates
Executive’s employment for Disability, the Company shall pay
to Executive an amount equal to three (3) times his Base
Salary, as in effect on the date of his Disability, in a lump sum
payment, within sixty (60) days following the date of
termination. The three (3) year period following
Executive’s date of termination shall be included as a
portion of the Employment Term for the purpose of determining
vesting of SERP benefits. In addition, upon such a termination,
Executive shall be entitled to receive health coverage, and shall
receive payments described in Section 2.1(c)(ii),
(iii) and (iv) hereof. Executive shall also receive any
amounts payable to him under the Company’s long-term
disability plan. Payments paid under this Section shall not be
reduced by any payments made directly to Executive by an insurance
company. Executive shall also be entitled to any other amounts
earned, accrued and owing but not yet paid under Section 1
above and any
benefits accrued and earned in
accordance with the terms of any applicable benefit
