EMPLOYMENT AGREEMENT
Exhibit 10.2
This Employment Agreement (“Agreement”) is executed on this 18th day of May, 2007, by and between Atlas America, Inc., a Delaware corporation (“Atlas”), and Xxxxxxx X. Xxxxxxx Xx. (“Xx. Xxxxxxx”).
BACKGROUND
A. Xx. Xxxxxxx currently serves as the President of DTE Gas & Oil Company, a Michigan corporation (“DGO”).
B. A subsidiary of Atlas Energy Resources, LLC (“Atlas Energy”), a Delaware limited liability company, controlled and operated by Atlas, is indirectly acquiring all of the equity interests of DGO (the “Closing”).
C. Xx. Xxxxxxx and Atlas desire to formally set forth the terms, conditions and agreements regarding Xx. Xxxxxxx’x employment as President and Chief Executive Officer of ATN Michigan, LLC (“ATN Michigan”), an indirect subsidiary of Atlas Energy, subsequent to the Closing. The date of the Closing shall be referred to herein as the “Effective Date.”
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual promises and covenants set forth herein, and intending to be legally bound hereby, Atlas and Xx. Xxxxxxx hereby agree as follows:
1 Employment. During the term of this Agreement, Xx. Xxxxxxx shall be employed by Atlas or one of its affiliates and serve as President and Chief Executive Officer of ATN Michigan, LLC. Xx. Xxxxxxx will also be named a Senior Vice President of Atlas Energy and Atlas Energy Management, Inc.
2 Duties. Xx. Xxxxxxx shall report to, and accept direction from the President of Atlas Energy, currently Xxxxxxx X. Xxxxx. Xx. Xxxxxxx shall serve Atlas diligently, competently and to the best of his abilities. Xx. Xxxxxxx shall devote all of his time and attention to the business of Atlas Energy and its affiliates, and shall not undertake any other duties which conflict with these responsibilities. Xx. Xxxxxxx shall render such services as may reasonably be required of him to accomplish the business purposes of Atlas Energy, and such duties as may be assigned to him from time to time.
3 Term. Xx. Xxxxxxx’x employment hereunder shall commence on the Effective Date and continue in full force and effect for a period of four (4) years, unless sooner terminated in accordance with the provisions hereof (the “Term”). The Term may be extended by the mutual agreement of the parties.
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4 Compensation.
a) Base Compensation. Xx. Xxxxxxx’x compensation during the Term shall be determined by the Compensation Committee of the Board of Directors of Atlas (the “Compensation Committee”), subject to the next sentence and Sections 4b) and 4(c). During the initial year of the Term, Atlas shall pay to Xx. Xxxxxxx base compensation initially in an amount equal to $300,000 per annum (“Base Compensation”). Xx. Xxxxxxx’x Base Compensation will be payable in accordance with the general payroll practices of Atlas. It is understood that the Compensation Committee will review Xx. Xxxxxxx’x performance on an annual basis and may increase his Base Compensation based upon his performance.
(b) Minimum Cash Bonuses. During each year of the Term, Xx. Xxxxxxx shall receive a minimum cash bonus in an amount equal to $300,000 (the “Minimum Cash Bonus”). The Minimum Cash Bonus shall be paid to Xx. Xxxxxxx by the date sixty (60) days following each calendar year. The initial Minimum Cash Bonus shall be paid in the first quarter of 2008; however, Xx. Xxxxxxx is not entitled to receive a pro rata portion of the Minimum Cash Bonus for the stub period of the last calendar year of the Term.
(c) Incentive Cash Bonuses. Beginning in 2008, Xx. Xxxxxxx will be eligible to receive an incentive cash bonus for each year of the Term, payable simultaneously with the Minimum Cash Bonus. For the 2008 year, Xx. Xxxxxxx will be eligible to receive an additional cash incentive award of $250,000 if the production, on a natural gas equivalents basis, for ATN Michigan, not including the effects of any subsequent acquisitions, exceeds 24 Bcfe. If the 2008 production exceeds 25.2 Bcfe, Xx. Xxxxxxx shall be eligible to receive another $250,000. For 2009, Xx. Xxxxxxx shall be eligible to receive an additional incentive cash bonus of $250,000 if production in 2009 exceeds 25.3 Bcfe, and another $250,000 if 2009 production exceeds 26.7 Bcfe. Notwithstanding the forgoing, any incentive cash bonus for which Xx. Xxxxxxx is eligible, shall be adjusted by the percentage deviation of ATN Michigan’s Lease Operating Expense (“XXX”) per mcfe, for the year in which the incentive cash bonus is being calculated, from a base XXX/mcfe of $.55/mcfe. For example, if XXX/mcfe in 2008 is 10% lower than $.55/mcfe, then Xx. Xxxxxxx’x incentive cash bonus would be adjusted by multiplying the award by 110%. If the XXX/mcfe in 2008 is 10% higher than $.55/mcfe, then Xx. Xxxxxxx’x incentive cash bonus would be adjusted by multiplying the award by 90%. Notwithstanding any other provision of this Section 4(c), Xx. Xxxxxxx must be employed by Atlas or Atlas Energy on the date the incentive cash bonus is due to be paid in order to receive such bonus, unless Xx. Xxxxxxx has been terminated without Cause (as defined below) or resigned for Good Reason (as defined below) between December 31 of such year and the date such incentive cash bonus is to be paid for such year. Xx. Xxxxxxx will be eligible for additional cash incentives in the event ATN Michigan makes subsequent acquisitions.
(d) Equity Compensation. All securities, including units or shares issuable on exercise of options, shall be non-assessable and subject to the same rights, privileges, preferences and distributions as the same class of securities held by other holders.
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(i) Atlas Energy Resources, LLC. Pursuant to the Long-Term Incentive Plan of Atlas Energy, on the Effective Date Xx. Xxxxxxx shall be granted 35,000 Restricted Units of Atlas Energy having Distribution Equivalent Rights. In addition, on the Effective Date, Xx. Xxxxxxx shall be granted restricted options to purchase 100,000 units of Atlas Energy having a strike price equal to the closing price of Atlas Energy’s units on the Effective Date and having a ten-year term. These restricted securities shall vest 25% on Xx. Xxxxxxx’x third anniversary of employment and 75% on his fourth anniversary of employment.
(ii) Atlas. Pursuant to the Long-Term Incentive Plan of Atlas, on the Effective Date Xx. Xxxxxxx shall be granted restricted options to purchase 20,000 common shares of Atlas having a strike price equal to the closing price of Atlas’s common shares on the Effective Date and having a ten-year term. These restricted securities shall vest 25% on Xx. Xxxxxxx’x third anniversary of employment and 75% on his fourth anniversary of employment.
5. Benefits.
Xx. Xxxxxxx shall be entitled to receive the following benefits from Atlas:
(a) Participation in Plans. Xx. Xxxxxxx shall be entitled to participate in all applicable incentive, savings, and retirement plans, practices, policies, and programs of Atlas and in any group life, hospitalization or disability insurance plans, and health programs, in each case to the extent Xx. Xxxxxxx is eligible under the terms of such plans or programs.
(b) Disability. Xx. Xxxxxxx shall be eligible for any short and long term disability and any life insurance plans or programs that are available to senior executives of Atlas in each case to the extent Xx. Xxxxxxx is eligible under the terms of such plans or programs.
(c) Reimbursement of Expenses. Atlas shall reimburse Xx. Xxxxxxx for all reasonable expenses incurred by Xx. Xxxxxxx in the performance of his duties, including without limitation expenses incurred during business-related travel. Xx. Xxxxxxx shall present to Atlas, from time to time, an itemized account of such expenses in such form as may be required by Atlas.
(d) Automobile. Atlas shall pay for one (1) automobile to be used by Xx. Xxxxxxx for any purpose. The make and model of the automobile shall be approved by the President and Chief Operating Officer of Atlas Energy.
(e) Blackberry/Cellular Phone. Atlas shall pay all expenses relating to Xx. Xxxxxxx’x use of a blackberry and cellular phone.
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6. Termination.
Anything herein contained to the contrary notwithstanding, Xx. Xxxxxxx’x employment hereunder shall terminate as a result of any of the following events:
(a) Xx. Xxxxxxx’x death.
(b) Termination by Atlas, for Cause. “Cause” shall encompass the following: (i) Xx. Xxxxxxx has committed any act of significant fraud; (ii) illegal conduct or gross misconduct by Xx. Xxxxxxx, in either case that is willful and results in material and demonstrable damage to the business or reputation of Atlas or any of its affiliates; (iii) Xx. Xxxxxxx is convicted of a crime other than a traffic offense; (iv) the continued failure of Xx. Xxxxxxx substantially to perform his duties under this Agreement (other than as a result of physical or mental illness or injury), after Atlas delivers to Xx. Xxxxxxx a written demand for substantial performance that specifically identifies, with reasonable opportunity to cure, the manner in which Atlas believes that Xx. Xxxxxxx has not substantially performed his duties; or (v) Xx. Xxxxxxx has failed to follow reasonable written directions of the Board of Directors of Atlas or Atlas Energy or the President of Atlas Energy which are consistent with his duties hereunder and not in violation of applicable law, provided Xx. Xxxxxxx shall have ten business days after written notice to cure such failure.
(c) Termination by Atlas without Cause.
(d) Xx. Xxxxxxx becomes disabled by reason of physical or mental disability for more than one hundred eighty (180) business days in the aggregate or a period of ninety (90) consecutive business days during any 365-day period and the Board determines, in good faith and in writing, that Xx. Xxxxxxx, by reason of such physical or mental disability, is rendered unable to perform his duties and services hereunder (a “Disability”). A termination of Xx. Xxxxxxx’x employment by Atlas for Disability shall be communicated to Xx. Xxxxxxx by written notice, and shall be effective on the thirtieth (30th) day after receipt of such notice by Xx. Xxxxxxx (the “Disability Effective Date”), unless Xx. Xxxxxxx returns to full-time performance of his duties before the Disability Effective Date.
(e) A termination by Xx. Xxxxxxx for Good Reason upon thirty (30) days’ prior written notice to Atlas. “Good Reason” shall mean: (i) any action by Atlas that results in a material diminution in Xx. Xxxxxxx’x position, authority, duties, or responsibilities, other than an isolated, insubstantial, and inadvertent action that is remedied by Atlas promptly after receipt of written notice thereof from Xx. Xxxxxxx; (ii) any purported termination of Xx. Xxxxxxx’x employment by Atlas for a reason or in a manner not expressly permitted by this Agreement; (iii) any reduction of Xx. Xxxxxxx’x Base Compensation or Minimum Cash Bonus below the amount of his Base Compensation or Minimum Cash Bonus on the Effective Date; (iv) Atlas or Atlas Energy requires Xx. Xxxxxxx to permanently relocate his primary residence outside the Traverse City area; or (v) any other substantial breach of this Agreement by Atlas that either is not taken in good faith or is not remedied by Atlas promptly after receipt of written notice thereof from Xx. Xxxxxxx; provided, however, that termination by Xx. Xxxxxxx for Good Reason shall be effective only if such failure has not been cured within thirty (30) days after written notice of such failure has been given to Atlas. A termination of employment by Xx. Xxxxxxx for Good Reason shall be effectuated by giving Atlas written notice of the termination within two (2) months of the event constituting Good Reason, setting forth in reasonable detail the specific conduct of Atlas that constitutes Good Reason and the specific provision(s) of this Agreement on which Xx. Xxxxxxx relies.
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(f) Termination by Xx. Xxxxxxx for any reason other than those set forth in Section 6(e) (other than Xx. Xxxxxxx’x death or disability) upon 180 day’s prior written notice to Atlas.
(g) The “Date of Termination” means the date of Xx. Xxxxxxx’x death, the Disability Effective Date, the date on which the termination of Xx. Xxxxxxx’x employment by Atlas for Cause or without Cause or by Xx. Xxxxxxx for Good Reason is effective, or the date on which Xx. Xxxxxxx gives Atlas notice of a termination of employment without Good Reason, as the case may be.
7. Effect of Termination.
(a) Death. If Xx. Xxxxxxx’x employment is terminated by reason of Xx. Xxxxxxx’x death during the Term, Atlas shall pay to Xx. Xxxxxxx’x designated beneficiaries (or, if there is no such beneficiary, to Xx. Xxxxxxx’x estate or legal representative), in a lump sum in cash within sixty (60) days after the Date of Termination, the sum of the following amounts: (1) any portion of Xx. Xxxxxxx’x Base Compensation through the Date of Termination that has been earned but not yet been paid; (2) the proportionate share of the Minimum Cash Bonus calculated through the Date of Termination; (3) any accrued but unpaid vacation pay through the Date of Termination; and (4) an amount equal to one year of Xx. Xxxxxxx’x Base Compensation as of the Date of Termination. In the event of termination under this Section 7(a), all other benefits, payments or compensation to be provided to Xx. Xxxxxxx hereunder shall terminate and Xx. Xxxxxxx’x rights in any stock option or incentive plans shall be governed solely by the terms of the applicable plan and grant.
(b) Disability. Upon the termination of Xx. Xxxxxxx’x employment pursuant to Section 6(d) hereof due to Xx. Xxxxxxx’x disability, Xx. Xxxxxxx shall be entitled to receive in a lump sum in cash within sixty (60) days after the Date of Termination, the sum of the following amounts: (1) any portion of Xx. Xxxxxxx’x Base Compensation through the Date of Termination that has been earned but not yet been paid; (2) the proportionate share of the Minimum Cash Bonus calculated through the Date of Termination, (3) any accrued but unpaid vacation pay through the Date of Termination. In the event of termination under this Section 7(b), the continuation of all other benefits shall be subject to the employment policies adopted by Atlas and Xx. Xxxxxxx’x rights in any stock option or incentive plans shall be governed solely by the terms of the applicable plan and grant. If Xx. Xxxxxxx is terminated by reason of Disability, Xx. Xxxxxxx shall assign to Atlas any benefits received from disability insurance provided to him by Atlas during the period in which he is receiving payments pursuant to this Section 7(b).
(c) By Atlas for Cause; By Xx. Xxxxxxx Other than for Good Reason. If Xx. Xxxxxxx’x employment is terminated by Atlas for Cause during the Term, Atlas shall pay Xx. Xxxxxxx his Base Compensation through the Date of Termination to the extent earned but not yet paid. If Xx. Xxxxxxx voluntarily terminates employment during the Term, other than for Good Reason, Atlas shall pay Xx. Xxxxxxx his Base Compensation through the Date of Termination to the extent earned but not yet paid. In the event of termination under this Section 7(c),
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all other benefits, payments or compensation to be provided to Xx. Xxxxxxx hereunder shall terminate and the rights of Xx. Xxxxxxx in any stock option or incentive plans shall be governed solely by the terms of the applicable plan and grant.
(d) By Atlas Other than for Cause, Death or Disability; by Xx. Xxxxxxx for Good Reason. If, during the Term, Atlas terminates Xx. Xxxxxxx’x employment, other than for Cause, Death or Disability, or Xx. Xxxxxxx terminates employment for Good Reason, Atlas shall elect to either (A) pay to Xx. Xxxxxxx amounts equal to the greater of (i): (1) Base Compensation as set forth in Section 4(a) as if he had remained employed by the Company for the Term of this Agreement, payable at the time when the same would have become due and payable if such termination had not occurred, and (2) the Minimum Cash Bonus as if Xx. Xxxxxxx had remained employed by the Company for the Term of this Agreement, payable within sixty (60) days after the end of such year, or (ii) (1) Base Compensation as set forth in Section 4(a) as if he had remained employed by the Company for two years from the Date of Termination, payable at the time when the same would have become due and payable if such termination had not occurred, and (2) the Minimum Cash Bonus as if Xx. Xxxxxxx had remained employed by the Company for two years from the Date of Termination, payable within sixty (60) days after the end of such year; or (B) pay to Xx. Xxxxxxx $600,000 within sixty (60) days after the Date of Termination and release Xx. Xxxxxxx from his obligations pursuant to Section 9(a) hereof. The payments and benefits provided pursuant to this Section 7(d) are intended as liquidated damages for a termination of Xx. Xxxxxxx’x employment by Atlas other than for Cause or for the actions of Atlas leading to a termination of Xx. Xxxxxxx’x employment by Xx. Xxxxxxx for Good Reason, and shall be the sole and exclusive remedy therefor. In the event of termination under this Section 7(d), all other benefits, payments or compensation to be provided to Xx. Xxxxxxx hereunder shall terminate and Xx. Xxxxxxx’x rights in any stock option or incentive plans shall be governed solely by the terms of the applicable plan and grant.
8. Confidential Information. All confidential information or trade secrets which Xx. Xxxxxxx may obtain during the period of employment relating to the business of Atlas and its affiliates shall not be published, disclosed, or made accessible by him to any other person, firm, or corporation except in the business and for the benefit of Atlas and its affiliates. The provisions of this Section 8 shall survive the termination of this Agreement, but shall not apply to any information which is or becomes publicly available otherwise than by any breach of this Section 8.
9. Covenant Not to Compete; Covenant Not to Solicit.
(a) Xx. Xxxxxxx shall not, during the Term and for a period ending on the date two (2) years from the Date of Termination, directly or indirectly through another person or entity engage in any aspect of any business involved in (A) oil or natural gas exploration, drilling or production in the State of Michigan, or (B) the offering of ownership interests in any entity engaged in oil or natural gas exploration, drilling or production in the State of Michigan. For purposes of this Section 9(a), “to engage” shall include Xx. Xxxxxxx acting as an owner (of more than 5%), employee, director or officer of an entity so engaged.
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(b) Xx. Xxxxxxx shall not, during the Term and for a period ending on the date two (2) years from the Date of Termination, directly or indirectly through another person or entity (i) induce or attempt to induce any officer or employee of Atlas or its affiliates to leave the employ of Atlas or such affiliate, or in any way interfere with the relationship between Atlas and any of its affiliates and any officer or employee thereof, (ii) hire any person who was an officer or employee of Atlas or any of its affiliates within 180 days after such person ceased to be an officer or employee of Atlas or any of its affiliates or (iii) induce or attempt to induce any customer, supplier, vendor, licensee, issuer, originator, investor or other business relation of Atlas or any of its affiliates to cease doing business with Atlas or such affiliate or in any way interfere with the relationship between any such customer, supplier, vendor, licensee, issuer, originator, investor or business relation and Atlas or any of its affiliates.
10. Remedies in Case of Breach of Certain Covenants or Termination. Atlas and Xx. Xxxxxxx agree that the damages that may result to Atlas from misappropriation of confidential information or a breach of covenants not to compete or solicit as prohibited by Sections 8 and 9 could be estimated only by conjecture and not by any accurate standard, and, therefore, any breach by Xx. Xxxxxxx of the provisions of such Sections, in addition to giving rise to monetary damages, will be enjoined.
11. Assignment.
(a) This Agreement is personal to Xx. Xxxxxxx and, without the prior written consent of Atlas, shall not be assignable by Xx. Xxxxxxx. This Agreement shall inure to the benefit of and be enforceable by Xx. Xxxxxxx’x legal representatives.
(b) This Agreement shall inure to the benefit of and be binding upon Atlas and its successors and assigns, and Atlas may assign this Agreement to any entity which is an affiliate of Atlas or Atlas Energy Resources, LLC. Xx. Xxxxxxx acknowledges and agrees that, if this Agreement is assigned pursuant to the previous sentence, he will perform the reasonable duties of a senior vice president of any such affiliate.
12. Miscellaneous.
(a) Severability. In case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal, or unenforceable in any respect such validity, illegality or unenforceability shall not affect any other provisions of this Agreement, and this Agreement shall be construed as if such invalid, illegal or unenforceable provision(s) had never been contained herein, provided that such invalid, illegal or unenforceable provision(s) shall first be curtailed, limited or eliminated only to the extent necessary to remove such invalidity, illegality or unenforceability with respect to the applicable law as it shall then be applied.
(b) Modification of Agreement. This Agreement shall not be modified by any oral agreement, either expressed or implied, and all modifications thereof shall be in writing and signed by the parties hereto.
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(c) Waiver. The waiver of any right under this Agreement by any of the parties hereto shall not be construed as a waiver of the same right at a future time or as a waiver of any other rights under this Agreement.
(d) Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of Pennsylvania, without giving affect to the principles of conflicts of laws.
(e) Notices. Any notice to be given pursuant to this Agreement shall be sufficient if in writing and mailed by certified or registered mail, postage-prepaid, to the addresses listed below, or to such other address as either party may notify the other of in accordance with this Section.
If to Atlas:
000 Xxxxxx Xxxx
Xxxx Xxxxxxxx, Xxxxxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, President
If to Xx. Xxxxxxx:
Xxxxxxx Xxxxxxx Xx.
00000 Xxx Xxxxx Xxxxx
Xxxxxxxx Xxxx, Xxxxxxxx 00000
(f) Duplicate Originals and Counterparts. This Agreement may be executed in any number of duplicate originals or counterparts or facsimile counterparts, each of such duplicate original or counterpart or facsimile counterpart shall be deemed to be an original and all taken together shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed or caused to be executed this Agreement as of the date first above written.
| ATLAS AMERICA, INC. | ||
| By: | /s/ Xxxxxxx X. Xxxxx | |
| Name: | Xxxxxxx X. Xxxxx | |
| Title: | Chief Executive Officer | |
| XXXXXXX X. XXXXXXX XX. | ||
| /s/ Xxxxxxx X. Xxxxxxx Xx. | ||
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