Exhibit 10.21
EMPLOYMENT
AGREEMENT
This Employment Agreement (“
Agreement ”) is made and effective as of July 1,
2009, by and between Atlas America, Inc. , a Delaware
Corporation having its principal office in Moon Township,
Pennsylvania (“ Employer ”) and Matthew A.
Jones , an individual residing in Haverford, Pennsylvania
(“ Executive ”).
WHEREAS, Executive has been Chief
Financial Officer of Employer since March 21, 2005, and
Employer, the Companies (as defined in Section 3C hereto) 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 as Chief Financial
Officer of Employer. Executive hereby accepts such employment in
accordance with the terms of this Agreement. Executive’s
position will be full-time (subject to the provisions of
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.
C. Other Interests. 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 civic and charitable
boards or committees, industry associations, fulfill speaking
engagements or teach at educational institutions and other
activities 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 this Agreement shall
commence on July 1, 2009 (the “ Employment Effective
Date ”) and, unless sooner terminated pursuant to
Section 5 hereof, shall continue for a period of two
(2) years thereafter (the “ Contract Period
”). This Agreement shall expire at the end of the then
current Contract Period unless Employer gives Executive written
notice of its intent to renew this Agreement at least 180 days
before the expiration of the then current Contract Period. If the
Executive accepts Employer’s offer to renew within five
(5) days from Executive’s receipt of such notice, the
Agreement shall be renewed for an additional two (2) years.
Termination of Executive’s employment hereunder for any
reason shall be referred to as a “ Termination
.”
3. Compensation
.
A. Base Salary . During the
term hereof, the Executive will be paid an initial base salary of $
300,000 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,
L.P., Atlas Pipeline Holdings, L.P., 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 contrary in the
Companies’ grant agreements, if Executive’s employment
is terminated by Employer without cause or if Executive terminates
his employment for Good Reason, then all of his Units shall be
fully vested.
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.
2
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) the Executive has committed any demonstrable and material
act of fraud; (ii) illegal or gross misconduct by the
Executive that is willful and results in damage to the business or
reputation of the Companies; (iii) the Executive is charged
with a felony; (iv) the continued failure by the Executive to
substantially to perform his duties under this Agreement (other
than as a result of physical or mental illness or injury), after
Employer delivers to the Executive a written demand for substantial
performance that specifically identifies, with reasonable
opportunity to cure, the manner in which Employer believes that the
Executive has not substantially performed his duties; or
(v) the Executive has failed to follow reasonable written
directions of Employer which are consistent with his duties
hereunder and not in violation of applicable law, provided the
Executive shall have 10 business days after written notice to cure
such failure. 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
3
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 fifty percent
(50%) or more of Employer’s voting securities or all or
substantially all of the assets of Employer by a single person or
entity or group of affiliated persons or entities other than by a
Related Entity (as defined below); or (b) Employer
consummates, a merger, consolidation, combination, share exchange,
division or other reorganization or transaction of Employer (a
“ Corporate Transaction ”) with an entity, other
than a Related Entity (as defined below), in which either
(A) the directors of 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 Employer immediately prior to
such Corporate Transaction and 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 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) 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 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
4
the period; or (d) the
shareholders of Employer approve a plan of complete liquidation, or
winding-up of Employer or an agreement of sale or disposition (in
one transaction or a series of transactions) of all or
substantially all of Employer’s assets or all or
substantially all of the assets of its primary subsidiaries 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 any of
the Companies or another entity that is an “affiliate”
of Employer or of Executive or any member of Executive’s
immediate family including his spouse or children, as determined in
accordance with Rule 12b-2 of the General Rules and Regulations
under the Securities Exchange Act of 1934, as amended
F. Executive’s termination of
employment for any reason other than those set forth in
Section 5E (other than by Executive’s death or
Disability) upon thirty (30) days’ prior written notice
to Employer.
G. The “Date of
Termination” means the date of Executive’s death, the
Disability Effective Date or the date on which the termination of
Executive’s employment by Employer for Cause
