EXHIBIT 1.2
ATLAS AMERICA SERIES 25-2004 PROGRAM
SELECTED INVESTMENT ADVISOR AGREEMENT
SELECTED INVESTMENT ADVISOR AGREEMENT
TABLE OF CONTENTS
PAGE
1. Description of Units..................................................................................1
2. Representations, Warranties and Agreements of the Managing General Partner............................1
3. Purchase of Units.....................................................................................2
4. Compensation to SIA..................................................................................11
5. Association of the Partnerships with Other Advisors and Dealers......................................11
6. Conditions of the SIA's Obligations..................................................................11
7. Conditions to the Managing General Partner's Obligations.............................................11
8. Covenants of the SIA.................................................................................11
9. Covenants of the Managing General Partner............................................................12
10. Payment of Costs and Expenses........................................................................12
11. Indemnification......................................................................................12
12. Representations and Agreements to Survive Delivery...................................................13
13. Term of Agreement....................................................................................13
14. Notices..............................................................................................14
15. Successors...........................................................................................14
16. Miscellaneous........................................................................................14
EXHIBIT A TO SELECTED INVESTMENT ADVISOR AGREEMENT OF ATLAS AMERICA SERIES
25-2004 PROGRAM
SELECTED INVESTMENT ADVISOR AGREEMENT
RE: ATLAS AMERICA SERIES 25-2004 PROGRAM
THIS SELECTED INVESTMENT ADVISOR AGREEMENT, which is referred to as the
"Agreement" is made and entered into as of the day indicated on Exhibit A
attached hereto and by this reference incorporated herein, between Atlas
Resources, Inc., which is referred to as the "Managing General Partner," on
behalf of Atlas America Series 25-2004 Program, and the selected investment
advisor (the "SIA") identified in Exhibit A hereto.
1. DESCRIPTION OF UNITS.
(a) Atlas America Series 25-2004 Program, which is referred to as
the "Program," consists of up to two limited partnerships
organized under the laws of Delaware as described below. These
limited partnerships are sometimes referred to in this
Agreement in the singular as a "Partnership" or in the plural
as "Partnerships." The Partnerships will be named as follows:
(i) Atlas America Series 25-2004(A) L.P.; and
(ii) Atlas America Series 25-2004(B) L.P.
(b) Generally, the Partnerships will issue and sell the Units at a
price of $25,000 per Unit subject to the discount set forth in
Section 3 of this Agreement for clients of the SIA. Subject to
the receipt and acceptance by the Managing General Partner of
the minimum subscription proceeds of $1,000,000 in a
Partnership by its Offering Termination Date for each
Partnership as described in the Private Placement Memorandum
(the "Offering Termination Date"), the Managing General
Partner may break escrow and use the subscription proceeds for
the Partnership's drilling activities, which is referred to as
the "Initial Closing Date." The subscription period for each
Partnership will be as described in the Private Placement
Memorandum, which includes any supplement. Also, the maximum
subscriptions of all the Partnerships, in the aggregate, must
not exceed $60 million.
The Managing General Partner, its officers, directors, and affiliates
may buy, for investment purposes only, the number of Units equal to the
minimum subscription proceeds of $1,000,000 required for a Partnership
to begin operations. The Managing General Partner will notify the SIA
of the Initial Closing Date and Offering Termination Date for each
Partnership.
2. REPRESENTATIONS, WARRANTIES AND AGREEMENTS OF THE MANAGING GENERAL
PARTNER. The Managing General Partner represents and warrants to and
agrees with you that:
(a) The Units have not been and will not be registered with the
Securities and Exchange Commission, which is referred to as
the "Commission." So far as is under the control of the
Managing General Partner the Units will be offered and sold in
reliance on the exemption provided by Regulation D, which is
referred to as "Regulation D," promulgated under Section 4(2)
of the Securities Act of 1933, as amended, which is referred
to as the "Act."
(b) The Managing General Partner shall provide to you for delivery
to all offerees and purchasers and their representatives the
information and documents that the Managing General Partner
deems appropriate to comply with Regulation D and any
exemptions under applicable state securities acts, which are
referred to as the "Blue Sky" laws.
(c) The Units when issued will be duly authorized and validly
issued as set forth in the Amended and Restated Certificate
and Agreement of Limited Partnership of each Partnership,
which is referred to as the "Partnership Agreement," the form
of which is included as Exhibit (A) to the Private Placement
Memorandum, and subject only to the rights and obligations set
forth in the Partnership Agreement or imposed by the laws of
the state of formation of each Partnership or of any
jurisdiction to the laws of which each Partnership is subject.
(d) Each Partnership was duly formed under the laws of the State
of Delaware and is validly existing as a limited partnership
in good standing under the laws of Delaware with full power
and authority to own its properties and conduct its business
as described in the Private Placement Memorandum. Each
Partnership will be qualified to do business as a limited
partnership or similar entity offering limited liability in
those jurisdictions where the Managing General Partner deems
the qualification necessary to assure limited liability of the
limited partners.
(e) The Private Placement Memorandum, as supplemented or amended,
does not contain an untrue statement of a material fact or
omit to state any material fact necessary in order to make the
statements in the Private Placement Memorandum, in the light
of the circumstances under which they are made, not
misleading.
3. PURCHASE OF UNITS.
(a) The SIA represents and warrants and agrees with the Managing
General Partner that it is:
(i) an entity, as designated in Exhibit A hereto;
(ii) organized and presently in good standing in the state
or states designated in Exhibit A hereto;
(iii) presently registered as an investment advisor under
the Investment Advisers Act of 1940, as amended, and
presently registered or licensed as an investment
advisor by the appropriate regulatory agency of each
state in which the SIA has clients, or it is exempt
from such registration requirements; and
(iv) not subject to any disqualification described in Rule
505(b)(2)(iii) of Regulation D.
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(b) Subject to the terms and conditions herein set forth, the
Managing General Partner hereby makes available for purchase
by the clients of the SIA a portion of the Units. The SIA
hereby covenants, warrants and agrees that, in regard to any
purchase of the Units by its clients, it will comply with:
(i) this Agreement;
(ii) all of the terms and conditions of the Private
Placement Memorandum; and
(iii) all applicable state and federal laws, including the
Securities Act of 1933, as amended, Regulation D; the
Investment Advisers Act of 1940, as amended; and any
and all regulations and rules pertaining thereto,
heretofore or hereafter issued by the SEC.
(c) Clients of the SIA may purchase the Units according to all of
the terms as are contained in the Private Placement Memorandum
and the supplements to the Private Placement Memorandum. The
SIA shall comply with all requirements set forth in the
Private Placement Memorandum and the supplements to the
Private Placement Memorandum. The SIA shall use and
distribute, in connection with the Units, only the Private
Placement Memorandum, the supplements to the Private Placement
Memorandum and such sales literature which shall conform in
all respects to any restrictions of local law and the
applicable requirements of the Securities Act of 1933, as
amended, and which has been approved in writing by the
Managing General Partner. The Managing General Partner
reserves the right to establish additional procedures as it
may deem necessary to ensure compliance with the requirements
of the Private Placement Memorandum and the supplements to the
Private Placement Memorandum, and the SIA shall comply with
all such additional procedures to the extent that it has
received written notice thereof.
(d) Pending receipt of the minimum subscription proceeds of
$1,000,000 of a Partnership, all monies received for purchase
of any of the Units shall be forwarded by the SIA to the
Managing General Partner for delivery to National City Bank of
Pennsylvania (the "Escrow Agent"), where such monies will be
deposited in an escrow account established by the Managing
General Partner solely for such subscriptions, except that,
until such time (if any) that such monies are deliverable to
the Managing General Partner pursuant to the Escrow Agreement
between the Managing General Partner and the Escrow Agent, the
SIA shall return directly to the subscriber who submitted the
check any check not made payable to:
(i) "Atlas Series 25-2004(A) L.P., Escrow Agent, National
City Bank of PA"; or
(ii) "Atlas Series 25-2004(B) L.P., Escrow Agent, National
City Bank of PA."
Subscriptions shall be executed as described in the Private
Placement Memorandum or as directed by the Managing General
Partner. The SIA shall deliver the check and the original
subscription documents to the Managing General Partner no
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later than the close of business of the first business day
after receipt of the check and the subscription documents by
the SIA.
(e) During the term of this Agreement the Managing General Partner
shall have full authority to take such action as it may deem
advisable in respect to all matters pertaining to the
performance of the SIA under this Agreement.
(f) The Units may be purchased by clients of the SIA:
(i) only where the Units may be legally offered and sold;
(ii) only by such persons in such states who shall be
legally qualified to purchase the Units; and
(iii) only by such persons in such states in which the SIA
is registered as an investment advisor or exempt from
any applicable registration requirements.
(g) The SIA shall have no obligation under this Agreement to
advise its clients to purchase any of the Units.
(h) The SIA shall use every reasonable effort to assure that Units
are purchased only by investors who:
(i) meet the investor suitability standards, including
the minimum income and net worth standards
established by the Managing General Partner and set
forth in the Private Placement Memorandum, and
minimum purchase requirements set forth in the
Private Placement Memorandum;
(ii) can reasonably benefit from an investment in the
Partnership based on each prospective investor's
overall investment objectives and portfolio
structure;
(iii) are able to bear the economic risk of the investment
based on each prospective investor's overall
financial situation;
(iv) have apparent understanding of:
(1) the fundamental risks of the investment;
(2) the risk that the prospective investor may
lose the entire investment;
(3) the lack of liquidity of the Units;
(4) the restrictions on transferability of the
Units;
(5) the background and qualifications of the
employees and agents of the Managing General
Partner; and
(6) the tax consequences of an investment in the
Units; and
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(v) the SIA will make the determinations required to be
made by it pursuant to this subparagraph (h) based on
information it has obtained from each prospective
investor, including, at a minimum, but not limited
to, the prospective investor's:
(1) age;
(2) investment objectives;
(3) investment experience;
(4) income;
(5) net worth;
(6) financial situation;
(7) other investments of the prospective
investor; and
(8) any other pertinent factors deemed by the
SIA to be relevant.
(i) In addition to complying with the provisions of subparagraph
(h) above, and not in limitation of any other obligations of
the SIA to determine suitability imposed by state or federal
law, the SIA agrees that it will comply fully with the
following provisions:
(i) the SIA shall have reasonable grounds to believe,
based on information provided by the investor
concerning his investment objectives, other
investments, financial situation and needs, and upon
any other information known by the SIA, that:
(1) each client of the SIA that purchases Units
is or will be in a financial position
appropriate to enable him to realize to a
significant extent the benefits (including
tax benefits) of an investment in the Units;
(2) each client of the SIA that purchases Units
has a fair market net worth sufficient to
sustain the risks inherent in an investment
in the Units (including potential loss of
his entire investment and lack of liquidity
of the Units); and
(3) the Units otherwise are or will be a
suitable investment for each client of the
SIA that purchases Units,
and the SIA shall maintain files disclosing the basis
upon which the determination of suitability was made;
(ii) the SIA shall not execute any transaction involving
the purchase of Units in a discretionary account
without prior written approval of the transactions by
the investor;
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(iii) the SIA shall have reasonable grounds to believe,
based upon the information made available to it, that
all material facts are adequately and accurately
disclosed in the Private Placement Memorandum and
provide a basis for evaluating the Units;
(iv) in making the determination set forth in subparagraph
(iii) above, the SIA shall evaluate items of
compensation, physical properties, tax aspects,
financial stability and experience of the sponsor,
conflicts of interest and risk factors, appraisals,
as well as any other information deemed pertinent by
it; and
(v) the SIA shall inform each prospective investor of all
pertinent facts relating to the liquidity and
marketability of the Units.
(j) The SIA agrees to retain in its files, for a period of at
least six years, information which will establish that each
purchaser of Units falls within the permitted class of
investors.
(k) The SIA either:
(i) shall not purchase Units for its own account; or
(ii) shall hold for investment any Units purchased for its
own account.
(l) The SIA shall deliver a copy of Section 260.141.11 of the
California Corporate Securities Law of 1968 to each client of
the SIA that purchases Units and resides in California.
(m) A sale of Units shall be deemed to be completed only after the
Managing General Partner receives a properly completed
Subscription Agreement for Units from the SIA evidencing the
fact that the investor had received a Private Placement
Memorandum, together with payment of the full purchase price
of each purchased Unit from a buyer who satisfies each of the
terms and conditions of the Private Placement Memorandum, and
only after such Subscription Agreement has been accepted in
writing by the Managing General Partner.
(n) Clients of the SIA who have been advised by the SIA on an
ongoing basis regarding investments other than in a
Partnership, and who are not being charged by the SIA, through
the payment of commissions or otherwise, direct transaction
based fees in connection with the purchase of the Units, shall
purchase the Units net of the 8% Sales Commissions at a per
Unit purchase price of $23,000.
(o) The SIA shall comply with all the provisions of Regulation D,
insofar as Regulation D applies to the SIA's activities under
this Agreement. Further, the SIA shall not engage in any
activity which would cause the offer and/or sale of the Units
not to comply with Regulation D, the Act, the Act of 1934, the
applicable rules and regulations of the Securities and
Exchange Commission, which is referred to as the "Commission,"
the applicable state securities laws and regulations and this
Agreement, and specifically the SIA agrees as set forth below.
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(i) The SIA shall not offer or sell the Units in any
state until the SIA has been advised in writing by
the Managing General Partner, or the Managing General
Partner's special counsel, that the offer or sale of
the Units:
(1) has been qualified in the state;
(2) is exempt from the qualification
requirements imposed by the state; or
(3) the qualification is otherwise not required.
(ii) Units shall not be offered and/or sold by the SIA by
means of any form of general solicitation or general
advertising, including, but not limited to, the
following:
(1) any advertisement, article, notice, or other
communication published in any newspaper,
magazine, or similar media or broadcast over
television or radio;
(2) any seminar or meeting whose attendees have
been invited by any general solicitation or
general advertising; or
(3) any letter, circular, notice, or other
written communication constituting a form of
general solicitation or general advertising.
(iii) The SIA shall provide each offeree with the
following:
(1) a complete and numbered copy of the Private
Placement Memorandum and all exhibits
incorporated in the Private Placement
Memorandum; and
(2) any numbered supplement or amendment to the
Private Placement Memorandum for the
Partnership in which the Units are then
being offered as set forth in (iv) below.
Also, unless advised otherwise by the Managing
General Partner, the SIA may choose to provide each
offeree with the following sales materials which are
collectively referred to as the "Sales Literature":
(1) a flyer entitled "Atlas America Series
25-2004 Program";
(2) an article entitled "Tax Rewards with Oil
and Gas Partnerships";
(3) a brochure of tax scenarios entitled "How an
Investment in Atlas America Series 25-2004
Program can Help Achieve an Investor's Tax
Objectives";
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(4) a brochure entitled "Investing in Atlas
America Series 25-2004 Program";
(5) a booklet entitled "Outline of Tax
Consequences of Oil and Gas Drilling
Programs";
(6) a brochure entitled "The Appalachian Basin:
A Prime Drilling Location Which Commands a
Premium";
(7) a brochure entitled "Investment Insights -
Tax Time";
(8) a brochure entitled "Frequently Asked
Questions"; and
(9) possibly other supplementary materials.
Further, the SIA shall keep file memoranda indicating
by number to whom each Private Placement Memorandum,
Sales Literature, and supplement or amendment to the
Private Placement Memorandum was delivered.
(iv) When a supplement or amendment to the Private
Placement Memorandum is prepared and delivered to the
SIA by the Managing General Partner or the
Dealer-Manager, the SIA agrees as follows:
(1) to distribute each supplement or amendment
to the Private Placement Memorandum,
identified by number, to every person who
has previously received a copy of the
Private Placement Memorandum from the SIA;
(2) to include each supplement or amendment in
all future deliveries of any Private
Placement Memorandum; and
(3) to keep file memoranda indicating to whom
each supplement or amendment was delivered.
(v) In connection with any offer or sale of the Units,
the SIA agrees to the following:
(1) to comply in all respects with statements
set forth in the Private Placement
Memorandum, the Partnership Agreement, and
any supplements or amendments to the Private
Placement Memorandum;
(2) not to make any statement inconsistent with
the statements in the Private Placement
Memorandum, the Partnership Agreement, and
any supplements or amendments to the Private
Placement Memorandum;
(3) not to make any untrue or misleading
statements of a material fact in connection
with the Units; and
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(4) not to provide any written information,
statements, or sales materials other than
the Private Placement Memorandum, the Sales
Literature, and any supplements or
amendments to the Private Placement
Memorandum unless approved in writing by the
Managing General Partner.
(vi) The SIA shall advise each offeree of Units in a
Partnership at the time of the initial offering to
him that the Partnership and the Managing General
Partner shall during the course of the offering and a
reasonable time before sale accord him and his
purchaser representative(s), if any, the opportunity
to ask questions and receive answers concerning the
terms and conditions of the offering and to obtain
any additional information, to the extent possessed
by the Partnership or the Managing General Partner or
obtainable by either of them without unreasonable
effort or expense, that is necessary to verify the
accuracy of the information contained in the Private
Placement Memorandum.
(vii) Before the sale of any of the Units, the SIA shall
make reasonable inquiry to determine if the offeree
is acquiring the Units for his own account or on
behalf of other persons, and that the offeree
understands the limitations on the offeree's
disposition of the Units set forth in Rule 502(d) of
Regulation D. This includes a determination by the
SIA that the offeree understands that he must bear
the economic risk of the investment for an indefinite
period of time because the Units have not been
registered under the Act and, thus, cannot be sold
unless the Units are subsequently registered under
the Act or an exemption from registration under the
Act is available.
(viii) Before the sale of any of the Units the SIA shall
have reasonable grounds to believe that:
(1) each subscriber is an "accredited investor"
as that term is defined in Rule 501(a) of
Regulation D; or
(2) each subscriber and his duly appointed
purchaser representative, if any, meet the
standards of Rule 506(b)(2)(ii) of
Regulation D.
Further, if the subscriber uses a purchaser
representative, then the SIA shall do the following:
(1) make reasonable inquiry to determine if the
purchaser representative(s) satisfies all of
the conditions of Rule 501(h) of Regulation
D;
(2) obtain a written acknowledgment by the
subscriber concerning his purchaser
representative(s); and
(3) before obtaining the foregoing
acknowledgment, disclose to the subscriber,
in writing, any material relationship
between his purchaser representative(s) or
its affiliates and the Managing General
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Partner or its affiliates, which then exists
or mutually is understood to be contemplated
or which has existed at any time during the
previous two years, and any compensation
received or to be received as a result of
that relationship.
(ix) Units shall not be sold by the SIA to more than a
total of 35 non-accredited investors in the
Partnerships combined as indicated to the SIA from
time to time by the Managing General Partner or the
Dealer-Manager.
(x) The SIA agrees to use its best efforts in the
solicitation and sale of the Units, including that:
(1) the SIA complies with all the provisions of
Regulation D, the Act, the Act of 1934, the
applicable rules and regulations of the
Commission, the applicable state securities
laws and regulations and this Agreement;
(2) the prospective purchasers meet the
suitability requirements set forth in the
Private Placement Memorandum, the
Subscription Agreement, and this Agreement;
and
(3) the prospective purchasers properly complete
the following forms, which will be included
in each Partnership's subscription packet as
exhibits to the Private Placement
Memorandum:
(A) the Subscription Agreement and
Annex A attached to the
Subscription Agreement [Exhibit
(I-B)];
(B) the Execution Page and Purchaser
Questionnaire [Exhibit (C)];
(C) the Purchaser Representative
Acknowledgment Form, if applicable,
[Annex A-1 to Exhibit (C)]; and
(D) the Acknowledgment of the Investor,
if applicable, [Annex A-1 to
Exhibit (C)];
together with any additional forms provided in any
supplement or amendment to the Private Placement
Memorandum, or otherwise provided to the SIA by the
Managing General Partner or the Dealer-Manager to be
completed by prospective purchasers.
The Managing General Partner shall have the right to
reject any subscription at any time for any reason
without liability to it. Subscription funds and
executed subscription packets shall be transmitted as
set forth in this Agreement.
(p) The SIA agrees and covenants that:
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(i) the representations and warranties the SIA makes in
this Agreement are and shall be true and correct at
the applicable closing date; and
(ii) the SIA shall and have fulfilled all of its
obligations under this Agreement at the applicable
closing date.
4. COMPENSATION TO SIA. The Managing General Partner shall pay no fees,
commissions, or other compensation to the SIA.
5. ASSOCIATION OF THE PARTNERSHIPS WITH OTHER ADVISORS AND DEALERS. It is
expressly understood between the Managing General Partner and the SIA
that the Managing General Partner, the Dealer-Manager, and/or the
Partnerships may cooperate with broker/dealers who are registered as
broker/dealers with the National Association of Securities Dealers,
Inc. (the "NASD") or with other investment advisors registered under
the Investment Advisers Act of 1940, as amended. Such broker/dealers
and investment advisors may enter into agreements with the Managing
General Partner, the Dealer-Manager, and/or the Partnerships on terms
and conditions identical or similar to this Agreement and shall receive
such rates of commission or other fees as are agreed to between the
Managing General Partner, the Dealer-Manager, and/or the Partnerships
and the respective broker/dealers and investment advisors as are in
accordance with the terms of the Private Placement Memorandum.
6. CONDITIONS OF THE SIA'S OBLIGATIONS. The SIA's obligations hereunder
are subject, during the term of this Agreement and the offering, to the
performance by the Managing General Partner of its obligations under
this Agreement and compliance by the Managing General Partner with the
covenants set forth in section 9 of this Agreement.
7. CONDITIONS TO THE MANAGING GENERAL PARTNER'S OBLIGATIONS. The
obligations of the Managing General Partner hereunder are subject,
during the term of this Agreement and the offering, to the conditions
that the SIA shall have satisfactorily performed all of its obligations
under this Agreement and complied with the covenants set forth in
section 8 of this Agreement.
8. COVENANTS OF THE SIA. The SIA covenants, warrants and represents,
during the term of this Agreement, that:
(a) the SIA is registered as an investment advisor under the
Investment Advisers Act of 1940, as amended, and registered or
licensed as an investment advisor by the appropriate
regulatory agency of each state in which the advisor has
clients, or it is exempt from such registration requirements;
(b) neither the SIA nor any person associated with the SIA is
registered as a broker/dealer or registered representative
with the NASD;
(c) the SIA shall comply with all applicable federal and state
securities laws, including, without limitation, the disclosure
requirements of the Investment Advisers Act of 1940, as
amended, and the provisions thereof requiring disclosure of
the existence of this Agreement and the compensation to be
paid to the SIA hereunder; and
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(d) the SIA shall maintain the records required by Section 204 of
the Investment Advisers Act of 1940, as amended, and Rule
204-2 thereunder in the form and for the periods required
thereby;
9. COVENANTS OF THE MANAGING GENERAL PARTNER. The Managing General Partner
covenants, warrants and represents, during the full term of this
Agreement, that:
(a) The Managing General Partner shall deliver to the SIA ample
copies of the Private Placement Memorandum and all amendments
or supplements to the Private Placement Memorandum.
(b) If any event affecting a Partnership or the Managing General
Partner occurs that in the opinion of the Managing General
Partner should be set forth in a supplement or amendment to
the Private Placement Memorandum, then the Managing General
Partner shall promptly at its expense prepare and furnish to
the SIA a sufficient number of copies of a supplement or
amendment to the Private Placement Memorandum so that it, as
so supplemented or amended, will not contain an untrue
statement of a material fact or omit to state any material
fact necessary in order to make the statements in the Private
Placement Memorandum, in the light of the circumstances under
which they are made, not misleading.
10. PAYMENT OF COSTS AND EXPENSES. The SIA shall pay all costs and expenses
incident to the performance of its obligations under this Agreement.
11. INDEMNIFICATION.
(a) The SIA shall indemnify and hold harmless the Managing General
Partner, each Partnership and its attorneys against any
losses, claims, damages or liabilities, joint or several, to
which they may become subject under the Act, the Act of 1934,
or otherwise insofar as the losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or
are based on the SIA's breach of any of its duties and
obligations, representations, or warranties under the terms or
provisions of this Agreement (including but not limited to an
untrue statement or alleged untrue statement of a material
fact, or any omission or alleged omission of a material fact,
other than a statement, omission, or alleged omission by the
SIA which is also, as the case may be, contained in or omitted
from the Private Placement Memorandum and which statement or
omission was not based on information supplied to the Managing
General Partner by the SIA) or the negligence, malpractice or
malfeasance of the SIA; and the SIA shall reimburse them for
any legal or other expenses reasonably incurred in connection
with investigating or defending the losses, claims, damages,
liabilities, or actions.
(b) The Managing General Partner shall indemnify and hold the SIA
harmless against any losses, claims, damages or liabilities,
joint or several, to which the SIA may become subject under
the Act, the Act of 1934, or otherwise insofar as the losses,
claims, damages, or liabilities (or actions in respect
thereof) arise out of or are based on the Managing General
Partner's breach of any of its duties and obligations,
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representations, or warranties under the terms or provisions
of this Agreement, and the Managing General Partner shall
reimburse the SIA for any legal or other expenses reasonably
incurred in connection with investigating or defending the
losses, claims, damages, liabilities, or actions.
(c) The foregoing indemnity agreements shall extend on the same
terms and conditions to, and shall inure to the benefit of,
each person, if any, who controls each indemnified party
within the meaning of the Act.
(d) Promptly after receipt by an indemnified party of notice of
the commencement of any action, the indemnified party shall,
if a claim in respect of the action is to be made against an
indemnifying party under this Section, notify the indemnifying
party in writing of the commencement of the action; but the
omission to promptly notify the indemnifying party shall not
relieve the indemnifying party from any liability which it may
have to any indemnified party. If any action is brought
against an indemnified party, it shall notify the indemnifying
party of the commencement of the action, and the indemnifying
party shall be entitled to participate in, and, to the extent
that it wishes, jointly with any other indemnifying party
similarly notified, to assume the defense of the action, with
counsel satisfactory to the indemnified and indemnifying
parties. After the indemnified party has received notice from
the agreed on counsel that the defense of the action under
this paragraph has been assumed, the indemnifying party shall
not be responsible for any legal or other expenses
subsequently incurred by the indemnified party in connection
with the defense of the action other than with respect to the
agreed on counsel who assumed the defense of the action.
12. REPRESENTATIONS AND AGREEMENTS TO SURVIVE DELIVERY. All
representations, warranties, and agreements of the Managing General
Partner and the SIA in this Agreement, including the indemnity
agreements contained in Section 11 of this Agreement, shall:
(a) survive the delivery, execution and closing of this Agreement;
(b) remain operative and in full force and effect regardless of
any investigation made by or on behalf of the SIA or any
person who controls the SIA within the meaning of the Act, or
by the Managing General Partner, or any of its officers,
directors, or any person who controls the Managing General
Partner within the meaning of the Act, or any other
indemnified party; and
(c) survive delivery of the Units.
13. TERM OF AGREEMENT.
(a) This Agreement shall become effective on the date on which
this Agreement is executed by the Managing General Partner and
the SIA. The SIA and the Managing General Partner may each
prevent this Agreement from becoming effective, without
liability to the other, by written notice before the time this
Agreement otherwise would become effective.
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(b) After this Agreement becomes effective, either party may
terminate it at any time for any reason by giving 30 days'
written notice to the other party; provided, however, that
this Agreement shall in any event automatically terminate at
the first occurrence of any of the following events:
(i) the offering shall be terminated; or
(ii) the SIA's license or registration to act as an
investment advisor shall be revoked or suspended by
any federal, self-regulatory or state agency and such
revocation or suspension is not cured within 10 days
from the date of such occurrence. In any event, this
Agreement shall be deemed suspended during any period
for which such license is revoked or suspended.
14. NOTICES.
(a) All notices or communications under this Agreement, except as
otherwise specifically provided, shall be in writing.
(b) Any notice or communication sent by the Managing General
Partner to the SIA shall be mailed, delivered, or sent by
facsimile, e-mail or telegraph, and confirmed to the SIA to
the person whose name and address are identified in Exhibit A
hereto.
(c) Any notice or communication sent by the SIA to the Managing
General Partner or the Partnership shall be mailed, delivered,
or sent by facsimile, e-mail or telegraph, and confirmed at
000 Xxxxxx Xxxx, Xxxx Xxxxxxxx, Xxxxxxxxxxxx 00000.
15. SUCCESSORS. This Agreement shall be binding upon and inure to the
benefit of the parties hereto, and shall not be assigned or transferred
by the SIA by operation of law or otherwise.
16. MISCELLANEOUS.
(a) This Agreement shall be construed in accordance with the
applicable laws of the Commonwealth of Pennsylvania.
(b) Nothing in this Agreement shall constitute the SIA as in
association with or in partnership with the Managing General
Partner or the Partnerships.
(c) This Agreement, including Exhibit A hereto, embodies the
entire understanding, between the parties to the Agreement,
and no variation, modification or amendment to this Agreement
shall be deemed valid or effective unless it is in writing and
signed by both parties hereto.
(d) If any provision of this Agreement shall be deemed void,
invalid or ineffective for any reason, the remainder of the
Agreement shall remain in full force and effect.
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(e) This Agreement may be executed in counterpart copies, each of
which shall be deemed an original but all of which together
shall constitute one and the same instrument comprising this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement on the
date and year indicated on Exhibit A hereto.
SELECTED INVESTMENT ADVISOR PROGRAM
___________________________ ATLAS AMERICA SERIES 25-2004 PROGRAM
(Name of SIA)
By: Atlas Resources, Inc.
Managing General Partner
By:_______________________________________ By:_____________________________________________
Print Name:__________________________ Xxxx X. Xxxxxxxxx, Senior Vice President -
Title:____________________________________ Direct Participation Programs
Witness:__________________________________
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EXHIBIT A
TO
SELECTED INVESTMENT ADVISOR AGREEMENT
OF
ATLAS AMERICA SERIES 25-2004 PROGRAM
This Exhibit A is attached to and made a part of that certain Selected
Investment Advisor Agreement by and between Atlas Resources, Inc., which is
referred to as the "Managing General Partner," on behalf of Atlas America Series
25-2004 Program and the Partnerships, and ____________________________, as the
RIA.
1. Date of Agreement:___________________________________________________________
2. Identity of RIA:_____________________________________________________________
Name:__________________________________________________________________
Type of Entity:________________________________________________________
(To be completed by the RIA, e.g., corporation,
partnership or sole proprietorship.)
State Organized in:____________________________________________________
(To be completed by RIA.)
Qualified To Do Business and in Good Standing in the Following Jurisdictions
(including your state of organization). (Note: Qualification to do business in
any jurisdiction is generally a requirement imposed by the secretary of state or
other authority of jurisdictions in which you do business, and is not related to
your holding a license as an investment advisor in such jurisdictions.
Questions concerning this matter should be directed to your legal counsel.)
________________________________________________________________________________
________________________________________________________________________________
(To be completed by the RIA)
Registered as an Investment Advisor in the following States:
________________________________________________________________________________
________________________________________________________________________________
(To be completed by the RIA)
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3. Name and Address for Notice Purposes (see Paragraph 14 of Agreement):
Name:__________________________________________________________________
Title:_________________________________________________________________
Company:_______________________________________________________________
Address:_______________________________________________________________
City, State and Zip Code:______________________________________________
Telephone Number (including area code):________________________________
4. Please complete the following for our records:
(a) How many registered investment advisors are with your firm?________
PLEASE ENCLOSE A CURRENT LIST. ALL INFORMATION WILL BE HELD IN
CONFIDENCE.
(b) Does your firm publish a newsletter? Yes____ No____
What is/are the frequency of the publication(s)?
___Weekly ___Monthly ___Quarterly
___Bi-weekly ___Bi-monthly ___Other (please specify)
PLEASE PLACE XXxxxxxxxx@xxxxxxxxxxxx.xxx ON YOUR MAILING LIST AND
PROVIDE A SAMPLE OF THE PUBLICATION IF AVAILABLE.
(c) Does your firm have regular internal mailings, or bulk package
mailings to its registered investment advisors?
Yes____ No____
PLEASE PLACE XXxxxxxxxx@xxxxxxxxxxxx.xxx ON YOUR MAILING LIST AND
PROVIDE A SAMPLE OF THE PUBLICATION IF AVAILABLE.
(d) Does your firm have a computerized electronic mail (E-Mail) system
for your registered investment advisors?
Yes____ No____
If so, please provide e-mail address:______________________________
(e) Website address:___________________________________________________
Person responsible:________________________________________________
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