VOTING AGREEMENT
Exhibit
10(z)
THIS
VOTING AGREEMENT (this
“Agreement”) dated as of June 29, 2007 is by and among Atlas America, Inc.,
a Delaware corporation (“Atlas America”), and Atlas Energy Management, Inc., a
Delaware corporation (“Atlas Management”).
WHEREAS,
reference is made to the
Class D Unit and Common Unit Purchase Agreement (the “Purchase Agreement”)
relating to the proposed private placement to certain institutional investors
of
Class D Units and Common Units of Atlas Energy Resources, LLC (the “Company”);
and
WHEREAS,
reference is made to the
Purchase Agreement, whereby the Company will agree to take all action necessary
to convene a meeting of its Unitholders to consider and vote upon, or obtain
the
consent of its Unitholders to, the conversion of the Purchasers’ Class D Units
into Common Units (the “Conversion”) as soon as practicable, but in any event
not later than 135 days following the Closing Date; and
WHEREAS,
each of Atlas America and
Atlas Management are record holders of Units (“Voting Units”) representing
limited liability company interests in the Company, and each of them desires
to
set forth certain agreements and arrangements related to the voting of such
Voting Units in respect of the conversion of the Class D Units into Common
Units.
NOW,
THEREFORE, in consideration of
the premises and the covenants and agreements contained herein, and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, and intending to be legally bound hereby, the parties hereby
agree
as follows:
1.
Effectiveness.
The
provisions of this Agreement shall be effective upon the date first written
above.
2.
Definitions.
Capitalized
terms used herein without definition shall have the meanings given to them
in
the Purchase Agreement.
3.
Agreement
to Vote. At any
meeting of the Unitholders convened to consider and vote upon the Conversion
or
in connection with any solicitation of consents to the conversion, each of
Atlas
America and Atlas Management unconditionally and irrevocably agrees to vote
all
of the Units owned by such person on the record date fixed by the Company’s
Board of Directors for any such meeting, or to give its consent in a consent
solicitation, in favor of the conversion of the Class D Units into Common Units.
4.
Additional
Covenants. As
applicable, the parties shall cause their respective officers, employees and
agents to take all requisite action requested by the Company or the Purchasers
to carry out their obligations under this Agreement.
5.
Specific
Enforcement. It
is agreed and understood that monetary damages would not adequately compensate
an injured party for the breach of this Agreement by any party, that this
Agreement shall be specifically enforceable, and that any breach or threatened
breach of this Agreement shall be the proper subject of a temporary or permanent
injunction or restraining order without a requirement of posting bond. Further,
each party hereto waives any claim or defense that there is an adequate remedy
at law for such breach or threatened breach.
6.
Representations
and
Warranties. Each of Atlas America and Atlas Management hereby represents and
warrants with respect to itself, on and as of the date of this Agreement, as
follows:
(a)
It has full right, power and
authority to vote the Voting Units, held of record by it, in the manner
contemplated herein.
(b)
The Voting Units represent
approximately 29,352,996 Common Units and 748,456 Class A Units.
(c)
It has all requisite power and
authority to enter into and perform its obligations under this Agreement. The
execution, delivery and performance of this Agreement have been duly authorized
by all necessary action on the part of such party. This Agreement has been
duly
executed and delivered by such party. This Agreement constitutes its legal,
valid and binding obligation, enforceable in accordance with its terms, except
as such enforceability may be limited by bankruptcy, insolvency, fraudulent
transfer and similar laws affecting creditors’ rights generally or by general
principles of equity.
(d)
The execution, delivery and
performance of this Agreement will not, with or without the giving of notice
or
the passage of time, (i) violate any judgment, injunction, order or decree
of any court, arbitrator or governmental agency applicable to such party, or
(ii) conflict with, result in the breach of any provision of, constitute a
default under, or require the consent or approval of any third party under,
any
agreement or instrument to which such party is a party or by which such party
is
bound.
7.
Covenants.
(a)
Until the termination of this
Agreement, such party will not enter into any transaction, take any action
or by
inaction permit any event to occur that would result in any of the
representations or warranties of such party herein contained not being true
and
correct or that would prevent or otherwise restrict such party from performing
its obligations under this Agreement. None of the parties to this Agreement
shall be subject to any restrictions on transfer as a result of entering into
this Agreement, except that in any transfer of all or any portion of any such
party’s Voting Units such transferee shall agree in writing to be bound by the
terms of this Agreement.
(b)
Such party shall execute and
deliver any additional documents reasonably necessary or desirable to evidence
the agreement to vote granted herein with respect to the Voting Units or
otherwise implement and effect the provisions of this Agreement.
8.
Third
Party Beneficiaries.
Each of Atlas America and Atlas Management acknowledges that the beneficiaries
of the terms of this Agreement are the Purchasers who purchase Class D Units
pursuant to the Purchase Agreement. Each of Atlas America and Atlas Management
acknowledges further and agrees that such Purchasers shall have the right to
enforce this Agreement. Nothing in this Agreement shall be construed to impose
any personal liability on any officer, employee, director, incorporator, member,
manager, partner or stockholder of any party or any of its affiliates.
9.
Captions.
The captions and
headings used in this Agreement are for convenience only and do not in any
way
limit or amplify the terms and provisions hereof.
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10.
Manner
of Voting. The
voting of the Voting Units owned by Atlas America and Atlas Management may
be
effected in person, by proxy, by written consent, or in any other manner
permitted by applicable law.
11.
Splits,
Dividends, Etc.
If there shall be any issuance of voting securities hereafter to any of the
parties hereto (including in connection with any split, dividend,
recapitalization, reorganization, or the like), such securities shall become
subject to this Agreement.
12.
Amendments.
This
Agreement may not be modified or amended without: (i) the written consent
of the Purchasers entitled to purchase a majority of the Purchased Units and
the
Purchased Class D Units based on the Common Unit Price and the Class D Unit
Purchase Price, as the case may be and (ii) an instrument or instruments in
writing signed by each of Atlas America and Atlas Management.
13.
Notices.
All notices or
other communications under this Agreement shall be in writing and shall be
given
(and shall be deemed to have been duly given upon receipt) by delivery in
person, by telecopy (with confirmation of receipt), or by registered or
certified mail, postage prepaid, return receipt requested, addressed to the
notice address specified on the applicable signature page to this Agreement.
14.
Entire
Agreement. This
Agreement is intended to be the sole agreement of the parties as it relates
to
this subject matter.
15.
Severability.
If any
provision of this Agreement shall be held invalid, illegal or unenforceable,
the
validity, legality or enforceability of the other provisions of this Agreement
shall not be affected thereby, and there shall be deemed substituted for the
provision at issue a valid, legal and enforceable provision as similar as
possible to the provision at issue.
16.
Governing
Law. This
Agreement shall be governed by and construed under the laws of the State of
New
York, without reference to the principles of conflicts of law.
17.
Counterparts.
This
Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
18.
No
Partnership, Agency or
Joint Venture. This Agreement is intended to create, and creates, a
contractual relationship and is not intended to create, and does not create,
any
agency, partnership, joint venture or any like relationship among the parties
hereto.
19.
Termination.
This
Agreement shall (i) terminate automatically following the satisfaction by
the Company of its obligations under Section 5.03 of the Purchase Agreement
and (ii) shall be deemed satisfied in full and terminated upon the
consummation of the Conversion. In the event of termination of this Agreement
pursuant to this Section 19, this Agreement shall become void and of no
effect with no liability on the part of any party hereto; provided, however,
no
such termination shall relieve any party hereto from any liability for any
breach of this Agreement occurring prior to such termination.
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IN
WITNESS WHEREOF, the parties have
executed this Voting Agreement as of the day and year hereinabove first written.
| ATLAS AMERICA, INC. | ||
| By: |
|
|
| Name: | Xxxxxxx X. Xxxxx | |
| Title: | Chief Financial Officer | |
| ATLAS ENERGY MANAGEMENT, INC. | ||
| By: |
|
|
| Name: | Xxxxxxx X. Xxxxx | |
| Title: | Chief Financial Officer | |
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