Exhibit 10.15
Execution Copy
EMPLOYMENT
AGREEMENT
This Employment Agreement (“
Agreement ”) is made and effective as of
January 30, 2009, by and between Atlas America, Inc. ,
a Delaware Corporation having its principal office in Moon
Township, Pennsylvania (“ Employer ”) and
Jonathan Z. Cohen , an individual residing in New York, New
York (“ Executive ”).
WHEREAS, Executive has been an
officer and/or director of Employer since 1998 and is a founder,
and has been an officer and/or director, of each of the other
Companies (as defined in Section 3C hereto), and Employer, the
Companies and Executive desire to formalize the arrangements
regarding his employment by Employer.
NOW, THEREFORE, the parties hereto,
intending to be legally bound, agree as follows:
1. Employment/Duties
.
A. Employment . Employer
hereby agrees to continue to employ Executive to serve as
Vice-Chairman of Employer. Executive hereby accepts such employment
in accordance with the terms of this Agreement. Executive’s
position will not be full-time and it is expressly understood and
acknowledged by Employer that Executive will be obliged to devote
only as much of his working abilities and professional efforts as
is necessary to fulfill his duties and to promote the objectives
and interests of the Companies (as defined in Section 3C
hereof). In the event of any conflict or ambiguity between the
terms of this Agreement and terms of employment applicable
generally to full-time employees, the terms of this Agreement shall
control.
B. Duties . Executive reports
at the direction of the Chief Executive Officer of Employer (and if
the Chairman of Employer is not also the Chief Executive Officer of
Employer, also to the Chairman of Employer) and, when appropriate,
the Board of Directors of Employer (the “ Board
”) and is bound to follow their lawful instructions and
directions. Executive agrees to serve diligently, competently and
to the best of his abilities during the period of employment.
Executive’s duties include, but are not limited to, capital
raising; strategic transactions and activities; building and
minding shareholder and lender relationships; developing and
implementing short and long term plans and approaches; and being
available to assist the Chairman and Board with respect to other
matters.
C. Other Interests . Subject
to Section 4 below, Employer acknowledges that Executive has
in the past, does currently and is expected in the future to
participate in and/or serve in other professional and civic
activities, including as an officer of other companies and/or on
corporate, civic and charitable boards or committees, industry
associations, fulfill speaking engagements or teach at educational
institutions, and manage portfolio investments or investments in
passive
activities (as defined in section 469 of the
Internal Revenue Code of 1986, as amended (the “ Code
”) that do not conflict with the business and affairs of
Companies or interfere, individually or in the aggregate, with
Executive’s performance of his duties hereunder.
2. Term .
The term of Executive’s
employment shall commence on January 30, 2008 (the “
Employment Effective Date ”) and, unless sooner
terminated pursuant to Section 5 hereof, shall continue for a
period of three (3) years thereafter. The three (3) year
period is hereinafter referred to as the “ Contract
Period .” Unless either party elects to terminate this
Agreement by giving the other party written notice of such election
at least 180 days before the expiration of the then current term,
the Contract Period shall be deemed to have been renewed for an
additional Contract Period of three (3) years commencing on
the day after the expiration of the then current Contract Period.
Termination of Executive’s employment hereunder for any
reason shall be referred to as a “ Termination
.”
3. Compensation
.
A. Base Salary . During the
Employment term hereof, the Executive will be paid an initial base
salary of $600,000 per annum (“ Base Salary ”).
Increases may be made to the Executive’s Base Salary at the
discretion of the Board. Effective as of the date of any such
increase, the Base Salary, as increased, shall be the Base Salary
for all purposes of this Agreement and may not thereafter be
reduced. Such Base Salary shall be paid in accordance with
Employer’s regular payroll policies and shall be subject to
all applicable withholding requirements.
B. Cash Bonus . Executive
shall be eligible to receive a bonus determined in accordance with
procedures established by the Compensation Committee of the Board.
All bonus payments shall be subject to all applicable withholding
requirements.
C. Equity Compensation .
Executive shall be eligible to receive grants of equity based
compensation in the form of restricted stock grants, stock options,
stock appreciation rights, phantom stock units or other forms of
equity based compensation that the Board may determine. Such equity
based compensation may be with respect to the securities of
Employer, Atlas Energy Resources, LLC, Atlas Pipeline Partners, LP,
Atlas Pipeline Holdings, LP, or other affiliates of Employer
(together the “ Companies ”). Collectively, all
equity based compensation in any of the Companies will be referred
to as “ Units ”. As of the date hereof,
Executive holds Units in the amounts set forth on Schedule 3.C
hereto. With respect to the Units:
(i) Vesting of Units . Except
as otherwise provided for in this Agreement, any unvested Units
will be subject to forfeiture in accordance with the applicable
long-term incentive plan (a “ Plan ”) of the
entity whose securities are the basis of such Unit (the “
Restriction ”). For purposes of the Units,
Executive’s employment will be considered to continue as long
as he remains employed by or performs services for any of the
Companies. Notwithstanding anything to the
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contrary in the Companies’ grant
agreements, if Executive’s employment is termination by
Employer without cause or if Executive terminates his employment
for good reason, then all of his Units shall be fully
vested.
(ii) Section 16
Compliance . Employer shall cause each of the Companies to take
all actions necessary so that the grant of Units shall comply with
the requirements of the Exchange Act Rule 16b-3(d) necessary for
the grant to qualify for the exemption available thereunder from
potential liability under Section 16(b) of the Securities
Exchange Act of 1934, to the extent applicable to
Executive.
4.
Benefits.
A. Vacation Leave . Executive
is entitled to take vacation days, holidays and personal days
according to Employer’s regular policies and procedures
applicable to other executives of Employer.
B. Benefit Plans . During the
Contract Period and, to the extent specifically provided for
herein, thereafter, (i) Executive shall be entitled to
participate in all applicable incentive, savings, and retirement
plans, practices, policies, and programs of Employer to the extent
they are generally available to other senior officers, directors
and executives of Employer, and (ii) Executive and/or his
family, as the case may be, shall be eligible for participation in,
and shall receive all benefits under, all applicable welfare
benefit plans, practices, policies, and programs provided by
Employer, including, without limitation, medical, prescription,
dental, disability, sickness benefits, employee life insurance,
accidental death, and travel insurance plans and programs, to the
same extent as other senior officers, directors or executives of
Employer. Employer retains the right to select and to change any
insurance provider at its discretion.
C. Expenses . Employer shall
reimburse Executive for all reasonable and necessary work-related
administrative and travel expenses incurred by Executive in
carrying out his duties under this Agreement, pursuant to
Employer’s business expense policies and procedures. Written
receipts must be submitted to document all expenses for which
reimbursement is sought
5. Termination
. Anything herein
contained to the contrary notwithstanding, Executive’s
employment shall terminate as a result of any of the following
events:
A. Executive’s
death.
B. Termination by Employer for
Cause. “Cause” shall encompass any of the following:
(i) Executive shall have been convicted of any felony or any
crime involving a material act of fraud, deceit or
misrepresentation in connection with his employment;
(ii) Executive fails to materially perform his duties under
this Agreement (other than as a result of physical or mental
illness or injury), after the Board delivers to Executive written
demand for substantial performance, with reasonable opportunity to
cure, that specifically identifies the manner in which the Board
believes that Executive has not substantially performed his duties;
or (iii)
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Executive breaches Section 7, 9 or 10 of
this Agreement. A Termination for Cause shall be effected in
accordance with the following procedures. Employer shall give
Executive written notice (“ Notice of Termination for
Cause ”) of its intention to terminate Executive’s
employment for Cause, setting forth in reasonable detail the
specific conduct constituting Cause and the specific provisions of
this Agreement on which such claim is based.
C. Termination by Employer without
Cause, upon ninety (90) days prior written notice to
Executive.
D. Executive becomes
disabled by reason of physical or mental disability for more than
one hundred eighty (180) days in the aggregate or a period of
ninety (90) consecutive days during any 365-day period and the
Board determines, in good faith based upon medical evidence, that
Executive, by reason of such physical or mental disability, is
rendered unable to perform his duties and services hereunder (a
“ Disability ”). Executive agrees to provide his
medical records and to submit to a medical examination so that the
Board may make its determination. A termination of
Executive’s employment by Employer for Disability shall be
communicated to Executive by written notice and shall be effective
on the thirtieth (30 th ) day after
Executive’s receipt of such notice (the “ Disability
Effective Date ”) unless Executive returns to full time
performance of his duties before the Disability Effective
Date.
E. Termination of employment by
Executive for “Good Reason” upon thirty
(30) days’ prior written notice to Employer. “Good
Reason” shall mean any action or inaction that constitutes a
material breach by Employer of this Agreement, or a Change of
Control of Employer.
(i) Executive must provide written
notice of termination for Good Reason to Employer within thirty
(30) days after the event constituting Good Reason. Employer
shall have a period of thirty (30) days in which it may
correct the act or failure to act that constitutes the grounds for
Good Reason as set forth in Executive’s notice of
termination. If Employer does not correct the act or failure to
act, Executive must terminate employment for Good Reason within
thirty (30) days after the end of the cure period, in order
for the termination to be considered a Good Reason
termination.
(ii) As used herein, “Change
of Control” shall mean the occurrence of any of the
following:
(a) The acquisition of the
beneficial ownership, as defined under the Securities Exchange Act
of 1934, of twenty-five percent (25%) or more of the
Employer’s voting securities or all or substantially all of
the assets of the Employer by a single person or entity or group of
affiliated persons or entities other than by a Related Entity (as
defined below); or
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(b) The Employer consummates, a
merger, consolidation, combination, share exchange, division or
other reorganization or transaction of the Employer (a “
Corporate Transaction ”) with an unaffiliated entity,
other than a Related Entity (as defined below), in which either
(A) the directors of the Employer as applicable immediately
prior to the Corporate Transaction constitute less than a majority
of the board of directors of the surviving, new or combined entity
unless one-half of the board of directors of the surviving, new or
combined entity, were directors of the Employer immediately prior
to such Corporate Transaction and the Employer’s chief
executive officer immediately prior to such Corporate Transaction
continues as the chief executive officer of the surviving, new or
combined entity, or (B) the voting securities of the Employer
immediately before the Corporate Transaction represent less than
sixty (60) percent of the combined voting power immediately
after the Corporate Transaction of the outstanding securities of
(I) the Employer, (II) the surviving entity or (III) in the
case of a division, each entity resulting from the division;
or
(c) During any
period of twenty-four (24) consecutive calendar months,
individuals who at the beginning of such period constitute the
Board cease for any reason to constitute at least a majority
thereof, unless the election or nomination for the election by the
Employer’s stockholders of each new director was approved by
a vote of at least two-thirds ( 2 / 3 ) of the directors then
still in office who were directors at the beginning of the period;
or
(d) The shareholders of the Employer
approve a plan of complete liquidation, or winding-up of the
Employer or an agreement of sale or disposition (in one transaction
or a series of transactions) of all or substantially all of the
Employer’s assets or all or substantially all of the assets
of its primary subsidiaries to an unaffiliated entity, other than
to a Related Entity (as defined below).
For purposes of the definition of
“Change of Control” as set forth herein, the term
“ Related Entity ” shall mean an entity that is
an “affiliate” of the Employer or of Exe
