Initial Public Offering (IPO): Pre-Effective Amendment to Registration Statement (General Form) — Form S-1 Filing Table of Contents
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1: S-1/A Pre-Effective Amendment to Registration Statement HTML 3.40M
(General Form)
21: CORRESP ¶ Comment-Response or Other Letter to the SEC HTML 118K
2: EX-1.(A) Underwriting Agreement HTML 301K
3: EX-4.(D) Instrument Defining the Rights of Security Holders HTML 15K
4: EX-4.(E) Instrument Defining the Rights of Security Holders HTML 15K
5: EX-5 Opinion re: Legality HTML 19K
6: EX-8 Opinion re: Tax Matters HTML 80K
7: EX-10 Material Contract HTML 54K
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18: EX-10.(X) Material Contract HTML 55K
19: EX-23.(A) Consent of Experts or Counsel HTML 12K
20: EX-24 Power of Attorney HTML 16K
OMNIBUS AGREEMENT DATED DECEMBER 18, 2006 BETWEEN
ATLAS ENERGY RESOURCES, LLC AND ATLAS AMERICA, INC.
OMNIBUS
AGREEMENT
THIS
OMNIBUS AGREEMENT (this “Omnibus
Agreement”)
is
entered into on, and effective as of December 18, 2006, by and between Atlas
Energy Resources, LLC, a Delaware limited liability company (“Atlas
Energy”),
and
Atlas America, Inc., a Delaware corporation (“Atlas
America”).
In
consideration of the premises and the covenants, conditions, and agreements
contained herein, and for other good and valuable consideration, the receipt
and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree
as
follows:
ARTICLE
I
DEFINITIONS
Section
1.1 Definitions.
As used
in this Omnibus Agreement, the following terms shall have the respective
meanings set forth below or in the recitals above:
“Atlas
America Entities” means Atlas America and any of its Subsidiaries
other than Atlas Energy and its Subsidiaries.
“Atlas
Energy Conflicts Committee” means the “conflicts committee”
as defined in the LLC Agreement.
“Authority”
means (i) the United States of America, (ii) any state, province, county, municipality
or other governmental subdivision within the United States of America, (iii)
any court or any governmental department, commission, board, bureau, agency
or other instrumentality of the United States of America, or of any state, province,
county, municipality or other governmental subdivision within the United States
of America and (iv) the National Association of Securities Dealers.
“Business
Opportunity” means an opportunity to pursue, purchase or invest in
a business opportunity with respect to a domestic natural gas or oil production
or development business that meets at least one of the following criteria:
(a)
it
involves the acquisition of a Subsidiary or
(b)
it
involves an investment in natural gas or oil wells or other natural gas or
oil
rights.
“Business
Opportunity Information” has the meaning set forth in Section 2.1.
“LLC
Agreement” means the limited liability company agreement of Atlas
Energy as then currently in effect.
“Losses”
has the meaning set forth in Section 3.3.
“Management
Agreement” means the management agreement of even date herewith between
Atlas Energy and Atlas Energy Management, Inc., as the same may be amended from
time to time.
“Person”
means an individual or a corporation, limited liability company, partnership,
joint venture, trust, unincorporated organization, association, government agency
or political subdivision thereof or other entity.
“Subsidiary”
means:
(a)
in
the case of a corporation, ownership, directly or indirectly, of at least a
majority of the outstanding shares of stock having ordinary voting power to
elect a majority of the board of directors of such corporation (irrespective
of
whether or not at the time stock of any other class or classes of such
corporation shall have or might have voting power by reason of the happening
of
any contingency); and
(b)
in
the case of a joint venture, limited liability company or partnership, general
or limited partnership or any other type of partnership or company other than
a
corporation, ownership, directly or indirectly, of at least a majority of the
voting equity of such entity or control of such entity. For purposes of this
definition, any Person which owns directly or indirectly an equity investment
in
another Person which allows the first Person to manage or elect managers who
manage the normal activities of such
second Person will be deemed to “control”
such
second Person (e.g.,
a sole
general partner controls a limited partnership).
ARTICLE
II
BUSINESS
OPPORTUNITIES
Section
2.1 Restricted
Businesses.
Atlas
America agrees that if an Atlas America Entity is presented with a Business
Opportunity, Atlas America shall give, and shall cause any other Atlas America
Entity to give, prompt written notice to Atlas Energy of the Business
Opportunity. Such notice shall set forth all information available to the Atlas
America Entity about the Business Opportunity, including the identity of the
Business Opportunity and its seller, venture partner or other material party
and
the proposed price, and shall include all written information about the Business
Opportunity provided to the Atlas America Entity by and on behalf of the seller,
venture partner or other material party, as well as any information or analyses
compiled by the Atlas America Entity from other sources (such information
collectively, the “Business
Opportunity Information”).
The
Atlas America Entities shall continue to provide promptly to Atlas Energy any
and all Business Opportunity Information subsequently received. Within a time
period specified by the Atlas America Entity’s notice to Atlas Energy, which
shall be a reasonable time under the circumstances, Atlas Energy shall advise
the Atlas America Entity in writing whether it wishes to acquire or invest
in
the Business Opportunity. If Atlas Energy advises the Atlas America Entity
of
its intent to acquire or invest in the Business Opportunity, the Atlas America
Entities shall refrain from making an offer for the Business Opportunity except
as permitted hereunder. If Atlas Energy (i) advises the Atlas America Entity
that (with the approval of Atlas Energy Conflicts Committee) it does not intend
to acquire or invest in the Business Opportunity, (ii) advises the Atlas America
Entity of its intent to acquire or invest in the Business Opportunity but does
not complete the acquisition or investment within a reasonable time after Atlas
Energy’s notice of its intent to the Atlas America Entity or (iii) fails to
timely advise the Atlas America Entity of its intent, any of the Atlas America
Entities shall be free to acquire or invest in the Business
Opportunity.
Section
2.2 Scope
of Restricted Business Prohibition.
Except
as provided in this Article
II
or the
LLC Agreement, each Atlas America Entity shall be free to engage in any business
activity whatsoever, including those that may be in direct competition with
Atlas Energy.
Section
2.3 Enforcement.
Atlas
America agrees and acknowledges that Atlas Energy does not have an adequate
remedy at law for the breach by Atlas America of the covenants and agreements
set forth in this Article
II,
and
that any breach by Atlas America of such covenants and agreements would result
in irreparable injury to Atlas Energy. Atlas America further agrees and
acknowledges that Atlas Energy may, in addition to the other remedies which
may
be available to it hereunder or under applicable law, file a suit in equity
to
enjoin any of the Atlas America Entities from such breach, and Atlas America
consents to the issuance of such injunctive relief.
ARTICLE
III
MISCELLANEOUS
Section
3.1 Governing
Law.
This
Omnibus Agreement shall be governed by, and construed in accordance with, the
laws of the State of Delaware, without giving effect to conflict of law
principles thereof.
Section
3.2 Notice.
All
notices or requests or consents provided for or permitted to be given pursuant
to this Omnibus Agreement must be in writing and must be given by depositing
same in the United States mail, addressed to the Person to be notified,
postpaid, and registered or certified with return receipt requested or by
delivering such notice in person or by telecopier to such party. Notice given
by
personal delivery or mail shall be effective upon actual receipt. Notice given
by telecopier shall be effective upon actual receipt if received during the
recipient’s normal business hours, or at the beginning of the recipient’s next
business day after receipt if not received during the recipient’s normal
business hours. All notices to be sent to a party pursuant to this Omnibus
Agreement shall be sent to or made at the address set forth below such party’s
signature to this Omnibus Agreement, or at such other address as such party
may
stipulate to the other parties in the manner provided in this
Section.
Section
3.3 Integration.
This
Omnibus Agreement supersedes all previous understandings or agreements among
the
parties, whether oral or written, with respect to their subject matter. This
document contains the entire understanding of the parties with respect to the
subject matter hereof and thereof. No understanding, representation, promise
or
agreement, whether oral or written, is intended to be or shall be included
in or
form part of this Omnibus Agreement unless it is contained in a written
amendment hereto executed by the parties hereto after the date of this Omnibus
Agreement.
Section
3.4 Effect
of Waiver or Consent.
No
waiver or consent, express or implied, by any party to or of any breach or
default by any Person in the performance by such Person of its obligations
hereunder shall be deemed or construed to be a consent or waiver to or of any
other breach or default in the performance by such Person of the same or any
other obligations of such Person hereunder. Failure on the part of a party
to
complain of any act of any Person or to declare any Person in default,
irrespective of how long such failure continues, shall not constitute a waiver
by such party of its rights hereunder until the applicable statute of
limitations period has run.
Section
3.5 Amendment
or Modification.
This
Omnibus Agreement may be amended or modified from time to time only by the
written agreement of all the parties hereto; provided, however, that Atlas
Energy may not, without the prior approval of the Atlas Energy Conflicts
Committee, agree to any amendment or modification that, in the reasonable
discretion of Atlas Energy, will adversely affect the holders of Atlas Energy
common units. Each such instrument shall be reduced to writing and shall be
designated on its face an “Amendment” or an “Addendum” to this Omnibus
Agreement.
Section
3.6 Assignment.
No
party shall have the right to assign its rights or obligations under this
Omnibus Agreement without the consent of the other parties
hereto.
Section
3.7 Counterparts.
This
Omnibus Agreement may be executed in any number of counterparts with the same
effect as if all parties had signed the same document. All counterparts shall
be
construed together and shall constitute one and the same
instrument.
Section
3.8 Severability.
If any
of the provisions of this Omnibus Agreement is held by any court of competent
jurisdiction to contravene, or to be invalid under, the laws of any political
body having jurisdiction over the subject matter hereof, such contravention
or
invalidity shall not invalidate the entire Omnibus Agreement. Instead, this
Omnibus Agreement shall be construed as if it did not contain the particular
provision or provisions held to be invalid and an equitable adjustment shall
be
made and necessary provision added so as to give effect to the intention of
the
parties as expressed in this Omnibus Agreement at the time of its execution.
Section
3.9 Headings;
References; Interpretation.
All Article and Section headings in this Omnibus Agreement are for convenience
only and shall not be deemed to control or affect the meaning or construction
of any of the provisions hereof. The words “hereof,”“herein”
and “hereunder” and words of similar import, when used in this Omnibus
Agreement, shall refer to this Omnibus Agreement as a whole, including all Schedules
and Exhibits attached hereto, and not to any particular provision of this Omnibus
Agreement. All personal pronouns used in this Omnibus Agreement, whether used
in the masculine, feminine or neuter gender, shall include all other genders,
and the singular shall include the plural and vice versa. The use herein of
the word “including” following any general statement, term or matter
shall not be construed to limit such statement, term or matter to the specific
items or matters set forth immediately following such word or to similar items
or matters, whether or not non-limiting language (such as “without limitation”,
“but not limited to”, or words of similar import) is used with reference
thereto, but rather shall be deemed to refer to all other items or matters that
could reasonably fall within the broadest possible scope of such general statement,
term or matter.
Section
3.10 Further
Assurances.
In
connection with this Omnibus Agreement and all transactions contemplated by
this
Omnibus Agreement, each party hereto agrees to execute and deliver such
additional documents and instruments and to perform such additional acts as
may
be necessary or appropriate to effectuate, carry out and perform all of the
terms, provisions and conditions of this Omnibus Agreement and all such
transactions.
Section
3.11 Laws
and Regulations.
Notwithstanding any provision of this Omnibus Agreement to the contrary, no
party hereto shall be required to take any act, or fail to take any act, under
this Omnibus Agreement if the effect thereof would be to cause such party to
be
in violation of any applicable law, statute, rule or regulation.
Section
3.12 Negation
of Rights of Limited Partners, Assignees and Third Parties.
The
provisions of this Omnibus Agreement are enforceable solely by the parties
to
this Omnibus Agreement, and no unitholder, assignee or other Person shall have
the right, separate and apart from Atlas Energy, to enforce any provision of
this Omnibus Agreement or to compel any party to this Omnibus Agreement to
comply with the terms of this Omnibus Agreement.
Section
3.13 Term.
This
Omnibus Agreement shall remain in effect for so long as an Atlas America Entity
controls Atlas Energy. For the purposes of this Section 3.13, “control”
means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management and policies of a Person, whether through ownership
of voting securities, by contract, or otherwise.
