VOTING AGREEMENT DATED AS OF JUNE 29, 2007 BETWEEN ATLAS AMERICA, INC. AND ATLAS ENERGY MANAGEMENT, INC.
Exhibit
10.31
VOTING
AGREEMENT DATED AS OF JUNE 29, ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇, INC. AND ATLAS ENERGY
MANAGEMENT,
INC.
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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of page intentionally left blank]
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IN
WITNESS WHEREOF, the parties have executed this Voting Agreement as of the
day
and year hereinabove first written.
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ATLAS
AMERICA, INC.
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Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title:
Chief Financial Officer
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ATLAS
ENERGY MANAGEMENT, INC.
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| By: | ||
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Name:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title:
Chief Financial Officer
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