Exhibit 1(a)
ATLAS AMERICA PUBLIC #11-2002 LTD.
DEALER-MANAGER AGREEMENT
WITH
ANTHEM SECURITIES, INC.
ANTHEM SECURITIES, INC.
DEALER-MANAGER AGREEMENT
TABLE OF CONTENTS
Page
1. Description of Units..................................................................................1
2. Representations, Warranties and Agreements of the Managing General Partner............................1
3. Grant of Authority to the Dealer-Manager..............................................................2
4. Compensation and Fees.................................................................................2
5. Covenants of the Managing General Partner.............................................................4
6. Representations and Warranties of the Dealer-Manager..................................................4
7. State Securities Registration.........................................................................8
8. Expense of Sale.......................................................................................9
9. Conditions of the Dealer-Manager's Duties.............................................................9
10. Conditions of the Managing General Partner's Duties..................................................10
11. Indemnification......................................................................................10
12. Representations and Agreements to Survive Delivery...................................................11
13. Termination..........................................................................................11
14. Notices..............................................................................................11
15. Format of Checks/Escrow Agent........................................................................12
16. Transmittal Procedures...............................................................................12
17. Parties..............................................................................................13
18. Relationship.........................................................................................13
19. Effective Date.......................................................................................13
20. Entire Agreement, Waiver.............................................................................13
21. Complaints...........................................................................................13
22. Privacy..............................................................................................13
Exhibit A - Escrow Agreement for Atlas America Public #11-2002 Ltd.
Exhibit B - Selling Agent Agreement
i
ANTHEM SECURITIES, INC.
DEALER-MANAGER AGREEMENT
(Best Efforts)
RE: ATLAS AMERICA PUBLIC #11-2002 LTD.
Anthem Securities, Inc.
X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Gentlemen:
The undersigned, Atlas Resources, Inc., which is referred to as the
"Managing General Partner," on behalf of Atlas America Public #11-2002 Ltd.,
confirms its agreement with you, as Dealer-Manager, as follows:
1. Description of Units. The Managing General Partner has formed a limited
partnership known as Atlas America Public #11-2002 Ltd., which is
referred to as "the "Partnership," which will issue and sell the Units
in the Partnership, which are referred to as the "Units," at a price of
$10,000 per Unit subject to the discounts set forth in Section 4(c) of
this Agreement for certain investors. Subject to the receipt and
acceptance by the Managing General Partner of the minimum subscription
proceeds of $1,000,000, 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."
No subscriptions to the Partnership will be accepted after whichever of
the following events occurs first, which is referred to as the
"Offering Termination Date":
o receipt of the maximum subscriptions of $40,000,000; or
o December 31, 2002.
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 Partnership has a currently effective registration statement
on Form S-1, including a final prospectus, for the registration
of the Units under the Securities Act of 1933, as amended, which
is referred to as the "Act." Such registration statement, as it
may be amended, and the prospectus and exhibits on file with the
SEC, as well as any post-effective amendments or supplements to
such registration statement or prospectus after the effective
date of registration, which are respectively referred to as the
"Registration Statement" and the "Prospectus."
(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 the Act and applicable state
securities acts, which are referred to as the "Blue Sky" laws.
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Dealer-Manager Agreement
(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 the Partnership, which is
referred to as the "Partnership Agreement," included as Exhibit
(A) to the Prospectus, and subject only to the rights and
obligations set forth in the Partnership Agreement or imposed by
the laws of the state of the Partnership's formation or of any
jurisdiction to the laws of which the Partnership is subject.
(d) The 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 Prospectus. The 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 Prospectus, 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 Prospectus,
in the light of the circumstances under which they are made, not
misleading.
3. Grant of Authority to the Dealer-Manager. Based on the representations
and warranties contained in this Agreement, and subject to the terms
and conditions set forth in this Agreement, the Managing General
Partner appoints you as the Dealer-Manager for the Partnership and
gives you the exclusive right to solicit subscriptions for the Units on
a "best efforts" basis in all states other than:
(a) Minnesota; and
(b) New Hampshire.
In all states other than Minnesota and New Hampshire you agree to use
your best efforts to effect sales of the Units and to form and manage a
selling group composed of soliciting broker/dealers, which are referred
to as the "Selling Agents," each of which shall be a member of the
National Association of Securities Dealers, Inc., which is referred as
the "NASD," and shall enter into a "Selling Agent Agreement" in
substantially the form attached to this Agreement as Exhibit "B."
The Managing General Partner shall have three business days after the
receipt of an executed Selling Agent Agreement to refuse that Selling
Agent's participation.
4. Compensation and Fees.
(a) As Dealer-Manager you shall receive from the Managing General
Partner the following compensation, based on each Unit sold to
investors who are situated and/or residents in states other than
Minnesota and New Hampshire and whose subscriptions for Units are
accepted by the Managing General Partner:
(i) a 2.5% Dealer-Manager fee;
(ii) a 7% Sales Commission;
(iii) a .5% nonaccountable reimbursement of marketing expenses;
and
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Dealer-Manager Agreement
(iv) a .5% reimbursement of the Selling Agents' bona fide
accountable due diligence expenses.
(b) All of the Sales Commissions and the .5% reimbursement of the
Selling Agents' bona fide accountable due diligence expenses
shall be reallowed to the Selling Agents, and all or a portion of
the .5% nonaccountable marketing expense reimbursement shall be
reallowed to the Selling Agents. The 2.5% Dealer-Manager fee
shall be reallowed to the wholesalers for subscriptions obtained
through their efforts. You shall retain any of the .5%
nonaccountable marketing expense reimbursement not reallowed to
the Selling Agents.
(c) Notwithstanding the foregoing:
(i) the Managing General Partner, its officers, directors, and
affiliates, and investors who buy Units through the
officers and directors of the Managing General Partner may
subscribe to Units for a subscription price reduced by the
2.5% Dealer-Manager fee, the 7% Sales Commission, the .5%
nonaccountable marketing expense reimbursement, and the
.5% reimbursement of the Selling Agents' bona fide
accountable due diligence expenses which shall not be paid
to you; and
(ii) registered investment advisors and their clients and
Selling Agents and their registered representatives and
principals may subscribe to Units for a subscription price
reduced by the 7% Sales Commission, which shall not be
paid to you, although their subscription price shall not
be reduced by the 2.5% Dealer-Manager fee, the .5%
nonaccountable marketing expense reimbursement, and the
.5% reimbursement of the Selling Agents' bona fide
accountable due diligence expenses which shall be paid to
you.
No more than 5% of the total Units sold shall be sold, in the
aggregate, with the discounts described above.
(d) Pending receipt and acceptance by the Managing General Partner of
the minimum subscription proceeds of $1,000,000, excluding:
(i) any optional subscription of the Managing General Partner
and its Affiliates; and
(ii) the subscription discounts set forth in Section 4(c) of
this Agreement;
all proceeds received by you from the sale of Units shall be held
in a separate interest bearing escrow account as provided in
Section 15 of this Agreement.
Unless at least the minimum subscription proceeds of $1,000,000
as described above are received on or before the Offering
Termination Date as described in Section 1 of this Agreement, the
offering of Units shall be terminated, in which event:
(i) the 2.5% Dealer-Manager fee, the 7% Sales Commission, the
.5% nonaccountable marketing expense reimbursement, and
the .5% reimbursement of the Selling Agents' bona fide
accountable due diligence expenses set forth in Section
4(a) of this Agreement shall not be payable to you;
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Dealer-Manager Agreement
(ii) all funds advanced by subscribers shall be returned to
them with interest earned; and
(iii) you shall deliver a termination letter in the form
provided to you by the Managing General Partner to each of
the subscribers and to each of the offerees previously
solicited by you and the Selling Agents in connection with
the offering of the Units.
(e) Except as otherwise provided below, the fees, reimbursements, and
Sales Commissions set forth in Section 4(a) of this Agreement
shall be paid to you within five business days after the
following:
(i) at least the minimum subscription proceeds of $1,000,000
as described above have been received by the Partnership
and accepted by the Managing General Partner; and
(ii) the subscription proceeds have been released from the
escrow account to the Managing General Partner.
You shall reallow to the Selling Agents and the wholesalers their
respective fees, reimbursements, and Sales Commissions as set
forth in Section 4(b) of this Agreement.
Thereafter, your fees, reimbursements, and Sales Commissions
shall be paid to you and shall be reallowed to the Selling Agents
and wholesalers as described above approximately every two weeks
until the Offering Termination Date, and all your remaining fees,
reimbursements, and Sales Commissions shall be paid by the
Managing General Partner no later than fourteen business days
after the Offering Termination Date.
5. Covenants of the Managing General Partner. The Managing General Partner
covenants and agrees that:
(a) The Managing General Partner shall deliver to you ample copies of
the Prospectus and all amendments or supplements to the
Prospectus.
(b) If any event affecting the 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
Prospectus, then the Managing General Partner shall promptly at
its expense prepare and furnish to you a sufficient number of
copies of a supplement or amendment to the Prospectus 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 Prospectus, in
the light of the circumstances under which they are made, not
misleading.
6. Representations and Warranties of the Dealer-Manager. You, as the
Dealer-Manager, represent and warrant to the Managing General Partner
that:
(a) You are a corporation duly organized, validly existing and in
good standing under the laws of the state of your formation or of
any jurisdiction to the laws of which you are subject, with all
requisite power and authority to enter into this Agreement and to
carry out your obligations under this Agreement.
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(b) This Agreement when accepted and approved shall be duly
authorized, executed, and delivered by you and shall be a valid
and binding agreement on your part in accordance with its terms.
(c) The consummation of the transactions contemplated by this
Agreement and the Prospectus shall not result in the following:
(i) any breach of any of the terms or conditions of, or a
default under your Articles of Incorporation or Bylaws, or
any other indenture, agreement, or other instrument to
which you are a party; or
(ii) any violation of any order applicable to you of any court
or any federal or state regulatory body or administrative
agency having jurisdiction over you or your affiliates.
(d) You are duly registered under the provisions of the Securities
Exchange Act of 1934, which is referred to as the "Act of 1934,"
as a dealer, and you are a member in good standing of the NASD.
You are duly registered as a broker/dealer in the states where
you are required to be registered in order to carry out your
obligations as contemplated by this Agreement and the Prospectus.
You agree to maintain all the foregoing registrations in good
standing throughout the term of the offer and sale of the Units,
and you agree to comply with all statutes and other requirements
applicable to you as a broker/dealer under those registrations.
(e) Pursuant to your appointment as Dealer-Manager, you shall use
your best efforts to exercise the supervision and control that
you deem necessary and appropriate to the activities of you and
the Selling Agents to comply with all the provisions of the Act,
insofar as the Act applies to your and their activities under
this Agreement. Further, you and the Selling Agents shall not
engage in any activity which would cause the offer and/or sale of
the Units not to comply with the Act, the Act of 1934, the
applicable rules and regulations of the Commission, the
applicable state securities laws and regulations, this Agreement,
and the NASD Conduct Rules including Rules 2420, 2730, 2740,
2750, and Rule 2810(b)(2) and (b)(3), which provide as follows:
Sec. (b)(2)
Suitability
(A) A member or person associated with a member shall
not underwrite or participate in a public offering
of a direct participation program unless standards
of suitability have been established by the program
for participants therein and such standards are
fully disclosed in the prospectus and are consistent
with the provisions of subparagraph (B) of this
section.
(B) In recommending to a participant the purchase, sale
or exchange of an interest in a direct participation
program, a member or person associated with a member
shall:
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(i) have reasonable grounds to believe, on the
basis of information obtained from the
participant concerning his investment
objectives, other investments, financial
situation and needs, and any other information
known by the member or associated person,
that:
(a) the participant is or will be in a
financial position appropriate to enable
him to realize to a significant extent
the benefits described in the
prospectus, including the tax benefits
where they are a significant aspect of
the program;
(b) the participant has a fair market net
worth sufficient to sustain the risks
inherent in the program, including loss
of investment and lack of liquidity; and
(c) the program is otherwise suitable for
the participant; and
(ii) maintain in the files of the member documents
disclosing the basis upon which the
determination of suitability was reached as to
each participant.
(C) Notwithstanding the provisions of subparagraphs (A)
and (B) hereof, no member shall execute any
transaction in a direct participation program in a
discretionary account without prior written approval
of the transaction by the customer.
Sec. (b)(3)
Disclosure
(A) Prior to participating in a public offering of a
direct participation program, a member or person
associated with a member shall have reasonable
grounds to believe, based on information made
available to him by the sponsor through a prospectus
or other materials, that all material facts are
adequately and accurately disclosed and provide a
basis for evaluating the program.
(B) In determining the adequacy of disclosed facts
pursuant to subparagraph (A) hereof, a member or
person associated with a member shall obtain
information on material facts relating at a minimum
to the following, if relevant in view of the nature
of the program:
(i) items of compensation;
(ii) physical properties;
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(iii) tax aspects;
(iv) financial stability and experience
of the sponsor;
(v) the program's conflicts and risk factors; and
(vi) appraisals and other pertinent reports.
(C) For purposes of subparagraphs (A) and (B) hereof, a
member or person associated with a member may rely
upon the results of an inquiry conducted by another
member or members, provided that:
(i) the member or person associated with a member
has reasonable grounds to believe that such
inquiry was conducted with due care;
(ii) the results of the inquiry were provided to
the member or person associated with a member
with the consent of the member or members
conducting or directing the inquiry; and
(iii) no member that participated in the inquiry is
a sponsor of the program or an affiliate of
such sponsor.
(D) Prior to executing a purchase transaction in a
direct participation program, a member or person
associated with a member shall inform the
prospective participant of all pertinent facts
relating to the liquidity and marketability of the
program during the term of investment.
(f) You agree to advise the Managing General Partner in writing of
each state in which you and the Selling Agents propose to offer
or sell the Units; and you shall not nor shall you permit any
Selling Agent to offer or sell the Units in any state until you
have 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:
(i) has been qualified in the state;
(ii) is exempt from the qualification requirements imposed by
the state; or
(iii) the qualification is otherwise not required.
(g) You and the Selling Agents have received copies of the Prospectus
relating to the Units and you and the Selling Agents have relied
only on the statements contained in the Prospectus and not on any
other statements whatsoever, either written or oral, with respect
to the details of the offering of Units.
Also, unless advised otherwise by the Managing General Partner,
you and the Selling Agents may choose to provide each offeree
with a brochure entitled "Atlas America Public #11-2002 Ltd."
which is referred to as the "Sales Literature."
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(h) You and the Selling Agents agree that you and the Selling Agents
shall not place any advertisement or other solicitation with
respect to the Units (including without limitation any material
for use in any newspaper, magazine, radio or television
commercial, telephone recording, motion picture, or other public
media) without the prior written approval of the Managing General
Partner, and without the prior written approval of the form and
content thereof by the Commission, the NASD and the securities
authorities of the states where such advertisement or
solicitation is to be circulated. Any such advertisements or
solicitations shall be at your expense.
(i) If a supplement or amendment to the Prospectus is prepared and
delivered to you by the Managing General Partner, you agree and
shall require any Selling Agent to agree as follows:
(1) to distribute each supplement or amendment to the
Prospectus to every person who has previously
received a copy of the Prospectus from you and/or
the Selling Agent; and
(2) to include each supplement or amendment in all
future deliveries of any Prospectus.
(j) In connection with any offer or sale of the Units, you agree and
shall require any Selling Agent to agree to the following:
(1) to comply in all respects with statements set forth
in the Prospectus, the Partnership Agreement, and
any supplements or amendments to the Prospectus;
(2) not to make any statement inconsistent with the
statements in the Prospectus, the Partnership
Agreement, and any supplements or amendments to the
Prospectus;
(3) not to make any untrue or misleading statements of a
material fact in connection with the Units; and
(4) not to provide any written information, statements,
or sales materials other than the Prospectus, the
Sales Literature, and any supplements or amendments
to the Prospectus unless approved in writing by the
Managing General Partner.
(k) You agree to use your best efforts in the solicitation and sale
of the Units and to coordinate and supervise the efforts of the
Selling Agents, and you shall require any Selling Agent to agree
to use its best efforts in the solicitation and sale of the
Units, including that the prospective purchasers meet the
suitability requirements set forth in the Prospectus and the
Subscription Agreement and the prospective purchasers properly
complete and execute the Subscription Agreement, which has been
provided as Exhibit (I-B) to the Partnership Agreement, Exhibit
(A) of the Prospectus, together with any additional forms
provided in any supplement or amendment to the Prospectus, or
otherwise provided to you by the Managing General Partner to be
completed by prospective purchasers.
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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 Agreements shall be
transmitted as set forth in Section 16 of this Agreement.
(l) Although not anticipated, if you assist in any transfers of the
Units, then you shall comply, and you shall require any Selling
Agent to comply, with the requirements of Rule 2810(b)(2)(B) and
(b)(3)(D) of the NASD Conduct Rules.
(m) You agree and covenant that the representations and warranties
you make in this Agreement are and shall be true and correct at
the applicable closing date, and you shall have fulfilled all
your obligations under this Agreement at the applicable closing
date.
7. State Securities Registration. Incident to the offer and sale of the
Units, the Managing General Partner shall use its best efforts either
in taking:
(a) all necessary action and filing all necessary forms and documents
deemed reasonable by it in order to qualify or register Units for
sale under the securities laws of the states requested by you
pursuant to Section 6(f) of this Agreement; or
(b) any necessary action and filing any necessary forms deemed
reasonable by it in order to obtain an exemption from
qualification or registration in those states.
Notwithstanding, the Managing General Partner may elect not to qualify
or register Units in any state or jurisdiction in which it deems the
qualification or registration is not warranted for any reason in its
sole discretion. The Managing General Partner and its counsel shall
inform you as to the states and jurisdictions in which the Units have
been qualified for sale or are exempt under the respective securities
or Blue Sky laws of those states and jurisdictions. The Managing
General Partner, however, has not assumed and will not assume any
obligation or responsibility as to your right or any Selling Agent's
right to act as a broker/dealer with respect to the Units in any state
or jurisdiction.
The Managing General Partner shall provide to you and the Selling
Agents for delivery to all offerees and purchasers and their
representatives any additional information, documents, and instruments
that the Managing General Partner deems necessary to comply with the
rules, regulations, and judicial and administrative interpretations in
those states and jurisdictions for the offer and sale of the Units in
these states. The Managing General Partner shall file all post-offering
forms, documents, or materials and take all other actions required by
the states and jurisdictions in which the offer and sale of Units have
been qualified, registered, or are exempt. However, the Managing
General Partner shall not be required to take any action, make any
filing, or prepare any document necessary or required in connection
with your status or any Selling Agent's status as a broker/dealer under
the laws of any state or jurisdiction.
The Managing General Partner shall provide you with copies of all
applications, filings, correspondence, orders, other documents, or
instruments relating to any application for qualification,
registration, exemption, or other approval under applicable state or
Federal securities laws for the offering.
8. Expense of Sale. The expenses in connection with the offer and sale of
the Units shall be payable as set forth below.
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(a) The Managing General Partner shall pay all expenses incident to
the performance of its obligations under this Agreement,
including the fees and expenses of its attorneys and accountants
and all fees and expenses of registering or qualifying the Units
for offer and sale in the states and jurisdictions as set forth
in Section 7 of this Agreement, or obtaining exemptions from
qualification or registration, even if this offering is not
successfully completed.
(b) You shall pay all expenses incident to the performance of your
obligations under this Agreement, including the formation and
management of the selling group and the fees and expenses of your
own counsel and accountants, even if this offering is not
successfully completed.
9. Conditions of the Dealer-Manager's Duties. Your obligations under this
Agreement shall be subject to the accuracy, as of the date of this
Agreement and at the applicable closing date of the Managing General
Partner's representations and warranties made in this Agreement, and to
the performance by the Managing General Partner of its obligations
under this Agreement.
10. Conditions of the Managing General Partner's Duties. The Managing
General Partner's obligations provided under this Agreement, including
the duty to pay compensation to you as set forth in Section 4 of this
Agreement, shall be subject to the following:
(a) the accuracy, as of the date of this Agreement and at the
applicable closing date as if made at the applicable closing
date, of your representations and warranties made in this
Agreement;
(b) the performance by you of your obligations under this Agreement;
and
(c) the Managing General Partner's receipt, at or before the
applicable closing date, of a fully executed Subscription
Agreement for each prospective purchaser as required by Section
6(k) of this Agreement.
11. Indemnification.
(a) You and the Selling Agents shall indemnify and hold harmless the
Managing General Partner, the 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 your agreements with the Selling Agents or your breach
of any of your duties and obligations, representations, or
warranties under the terms or provisions of this Agreement, and
you and the Selling Agents 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 you and the
Selling Agents harmless against any losses, claims, damages or
liabilities, joint or several, to which you and the Selling
Agents 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, representations, or warranties under the terms or
provisions of this Agreement, and the Managing General Partner
shall reimburse you and the Selling Agents for any legal or other
expenses reasonably incurred in connection with investigating or
defending the losses, claims, damages, liabilities, or actions.
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(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 you 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;
and
(b) remain operative and in full force and effect regardless of any
investigation made by or on behalf of you or any person who
controls you within the meaning of the Act, 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. Termination.
(a) You shall have the right to terminate this Agreement other than
the indemnification provisions of Section 11 of this Agreement by
giving notice as specified below any time at or before a closing
date:
(i) if the Managing General Partner has failed, refused, or
been unable at or before a closing date, to perform any of
its obligations under this Agreement; or
(ii) there has occurred an event materially and adversely
affecting the value of the Units.
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If you elect to terminate this Agreement other than the indemnification
provisions of Section 11 of this Agreement, then the Managing General
Partner shall be promptly notified by you by telephone, e-mail,
facsimile, or telegram, confirmed by letter.
(b) The Managing General Partner may terminate this Agreement other
than the indemnification provisions of Section 11 of this
Agreement, for any reason and at any time, by promptly giving
notice to you by telephone, e-mail, facsimile, or telegram,
confirmed by letter as specified below at or before a closing
date.
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 you shall be mailed, delivered, or sent by facsimile, e-mail
or telegraph, and confirmed to you at X.X. Xxx 000, 000 Xxxxxx
Xxxx, Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000.
(c) Any notice or communication sent by you 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. Format of Checks/Escrow Agent. Pending receipt of the minimum
subscription proceeds of $1,000,000 as set forth in Section 4(d) of
this Agreement, the Managing General Partner and you and the Selling
Agents, including customer carrying broker/dealers, agree that all
subscribers shall be instructed to make their checks, drafts, or money
orders payable solely to "Atlas Public #11-2002 Ltd., Escrow Agent, PNC
Bank," as agent for the Partnership, and you agree and shall require
the Selling Agents, including customer carrying broker/dealers, to
agree to comply with Rule 15c2-4 adopted under the Act of 1934.
If you receive a check, draft, or money order not conforming to the
foregoing instructions, then you shall return the check, draft, or
money order to the Selling Agent not later than the end of the next
business day following its receipt by you. The Selling Agent shall then
return the check, draft, or money order directly to the subscriber not
later than the end of the next business day following its receipt from
you. Checks, drafts, or money orders received by you or a Selling Agent
which conform to the foregoing instructions shall be transmitted by you
under Section 16 "Transmittal Procedures," below.
You represent that you have executed the Escrow Agreement for the
Partnership and agree that you are bound by the terms of the Escrow
Agreement executed by you, the Partnership, and the Managing General
Partner, a copy of which is attached to this Agreement as Exhibit "A."
16. Transmittal Procedures. You and each Selling Agent, including customer
carrying broker/dealers, shall transmit received investor funds in
accordance with the following procedures. For purposes of the
following, the term "Selling Agent" shall also include you as
Dealer-Manager when you receive subscriptions from investors.
Anthem Securities, Inc. 12
Dealer-Manager Agreement
(a) Pending receipt of the minimum subscription proceeds of
$1,000,000 as set forth in Section 4(d) of this Agreement, the
Selling Agents on receipt of any check, draft, and money order
from a subscriber shall promptly transmit the check, draft, and
money order and the original executed Subscription Agreement to
you, as Dealer-Manager, by the end of the next business day
following receipt of the check, draft, or money order by the
Selling Agent. By the end of the next business day following your
receipt of the check, draft, or money order and the original
executed Subscription Agreement, you, as Dealer-Manager, shall
transmit the check, draft, or money order and a copy of the
executed Subscription Agreement to the Escrow Agent, and the
original executed Subscription Agreement and a copy of the check,
draft, or money order to the Managing General Partner.
(b) On receipt by you, as Dealer-Manager, of notice from the Managing
General Partner that the minimum subscription proceeds of
$1,000,000 as set forth in Section 4(d) of this Agreement have
been received, the Managing General Partner, you, and the Selling
Agents agree that all subscribers then may be instructed, in the
Managing General Partner's sole discretion, to make their checks,
drafts, or money orders payable solely to "Atlas Public #11-2002
Ltd."
Thereafter, the Selling Agents shall promptly transmit any and
all checks, drafts, and money orders received from subscribers
and the original executed Subscription Agreement to you, as
Dealer-Manager, by the end of the next business day following
receipt of the check, draft, or money order by the Selling Agent.
By the end of the next business day following your receipt of the
check, draft, or money order and the original executed
Subscription Agreement, you, as Dealer-Manager, shall transmit
the check, draft or money order and the original executed
Subscription Agreement to the Managing General Partner.
17. Parties. This Agreement shall inure to the benefit of and be binding on
you, the Managing General Partner, and any respective successors and
assigns. This Agreement shall also inure to the benefit of the
indemnified parties, their successors and assigns. This Agreement is
intended to be and is for the sole and exclusive benefit of the parties
to this Agreement, including the Partnership, and their respective
successors and assigns, and the indemnified parties and their
successors and assigns, and for the benefit of no other person. No
other person shall have any legal or equitable right, remedy or claim
under or in respect of this Agreement. No purchaser of any of the Units
from you or a Selling Agent shall be construed a successor or assign
merely by reason of the purchase.
18. Relationship. This Agreement shall not constitute you a partner of the
Managing General Partner, the Partnership, or any general partner of
the Partnership, nor render the Managing General Partner, the
Partnership, or any general partner of the Partnership liable for any
of your obligations.
19. Effective Date. This Agreement is made effective between the parties as
of the date accepted by you as indicated by your signature to this
Agreement.
20. Entire Agreement, Waiver.
(a) This Agreement constitutes the entire agreement between the
Managing General Partner and you, and shall not be amended or
modified in any way except by subsequent agreement executed in
writing. Neither party to this Agreement shall be liable or bound
to the other by any agreement except as specifically set forth in
this Agreement.
Anthem Securities, Inc. 13
Dealer-Manager Agreement
(b) The Managing General Partner and you may waive, but only in
writing, any term, condition, or requirement under this Agreement
that is intended for its benefit. However, any written waiver of
any term or condition of this Agreement shall not operate as a
waiver of any other breach of that term or condition of this
Agreement. Also, any failure to enforce any provision of this
Agreement shall not operate as a waiver of that provision or any
other provision of this Agreement.
21. Complaints. The Managing General Partner and you, as Dealer-Manager,
agree as follows:
(a) to notify the other if either receives an investor complaint in
connection with the offer or sale of Units by you or a Selling
Agent;
(b) to cooperate with the other in resolving the complaint; and
(c) to cooperate in any regulatory examination of the other to the
extent it involves this Agreement or the offer or sale of Units
by you or a Selling Agent.
22. Privacy. The Managing General Partner and you each acknowledge that
certain information made available to the other under this Agreement
may be deemed nonpublic personal information under the
Xxxxx-Xxxxx-Xxxxxx Act, other federal or state privacy laws (as
amended), and the rules and regulations promulgated thereunder, which
are referred to collectively, as the "Privacy Laws." The Managing
General Partner and you agree as follows:
(a) not to disclose or use the information except as required to
carry out each party's respective duties under this Agreement or
as otherwise permitted by law in the ordinary course of business;
(b) to establish and maintain procedures reasonably designated to
assure the security and privacy of all the information; and
(c) to cooperate with the other and provide reasonable assistance in
ensuring compliance with the Privacy Laws to the extent
applicable to either or both the Managing General Partner and
you.
Very truly yours,
MANAGING GENERAL PARTNER
ATLAS RESOURCES, INC.,
a Pennsylvania corporation
, 2002 By:
-------------------------------- ---------------------------------------------------------
Date Xxxx X. Xxxxxxxxx, Senior Vice President - Direct
Participation Programs
PARTNERSHIP
ATLAS AMERICA PUBLIC #11-2002 LTD.
By: Atlas Resources, Inc.,
Managing General Partner
, 2002 By:
-------------------------------- ---------------------------------------------------------
Date Xxxx X. Xxxxxxxxx, Senior Vice President - Direct
Participation Programs
DEALER-MANAGER
ANTHEM SECURITIES, INC.,
a Pennsylvania corporation
, 2002 By:
-------------------------------- ---------------------------------------------------------
Date Xxxxxxx X. Xxxxx, President
Anthem Securities, Inc. 14
Dealer-Manager Agreement
EXHIBIT "A"
ATLAS AMERICA PUBLIC #11-2002 LTD.
ESCROW AGREEMENT
THIS AGREEMENT is made to be effective as of August 26, 2002, by and
among Atlas Resources, Inc., a Pennsylvania corporation (the "Managing General
Partner"), Anthem Securities, Inc., a Pennsylvania corporation ("Anthem"), Xxxxx
Funding, Inc., a Pennsylvania corporation ("Xxxxx Funding"), collectively Anthem
and Xxxxx Funding are referred to as the "Dealer-Manager," Atlas America Public
#11-2002 Ltd., a Delaware limited partnership (the "Partnership") and PNC Bank,
Pittsburgh, Pennsylvania, as escrow agent (the "Escrow Agent").
WITNESSETH:
WHEREAS, the Managing General Partner intends to offer publicly for sale
to qualified investors (the "Investors") up to 4,000 limited partnership
interests in the Partnership (the "Units").
WHEREAS, each Investor will be required to pay his subscription in full
on subscribing by check, draft, or money order (the "Subscription Proceeds").
WHEREAS, the cost per Unit will be $10,000 subject to certain discounts
of up to10.5% ($1,050 per Unit) for sales to the Managing General Partner, its
officers, directors and affiliates, registered investment advisors and their
clients, Selling Agents and their registered representatives and principals, and
investors who buy Units through the officers and directors of the Managing
General Partner. Also, the Managing General Partner, in its discretion, may
accept one-half Unit ($5,000) subscriptions, with larger subscriptions permitted
in $1,000 increments.
WHEREAS, the Managing General Partner and Anthem have executed an
agreement ("Anthem Dealer-Manager Agreement") under which Anthem will solicit
subscriptions for Units in all states other than Minnesota and New Hampshire on
a "best efforts" "all or none" basis for Subscription Proceeds of $1,000,000 and
on a "best efforts" basis for the remaining Units on behalf of the Managing
General Partner and the Partnership and under which Anthem has been authorized
to select certain members in good standing of the National Association of
Securities Dealers, Inc. ("NASD") to participate in the offering of the Units
("Selling Agents").
WHEREAS, the Managing General Partner and Xxxxx Funding have executed an
agreement ("Xxxxx Funding Dealer-Manager Agreement") under which Xxxxx Funding
will solicit subscriptions for Units in the states of Minnesota and New
Hampshire on a "best efforts" "all or none" basis for Subscription Proceeds of
$1,000,000 and on a "best efforts" basis for the remaining Units on behalf of
the Managing General Partner and the Partnership and under which Xxxxx Funding
has been authorized to select certain members in good standing of the NASD to
participate in the offering of the Units ("Selling Agents").
WHEREAS, the Anthem Dealer-Manager Agreement and the Xxxxx Funding
Dealer-Manager Agreement, collectively referred to as the "Dealer-Manager
Agreement," provide for compensation to the Dealer-Manager to participate in the
offering of the Units, subject to the discounts set forth above for certain
Investors, which compensation includes, but is not limited to, for each Unit
sold:
1
o a 2.5% Dealer-Manager fee;
o a 7% sales commission;
o a .5% nonaccountable reimbursement of marketing expenses; and
o a .5% reimbursement of the Selling Agents' bona fide accountable
due diligence expenses;
all or a portion of which will be reallowed to the Selling Agents and
wholesalers.
WHEREAS, under the terms of the Dealer-Manager Agreement the Subscription
Proceeds are required to be held in escrow subject to the receipt and acceptance
by the Managing General Partner of the minimum Subscription Proceeds of
$1,000,000, excluding any optional subscription by the Managing General Partner,
its officers, directors, and Affiliates.
WHEREAS, the Units may also be offered and sold by the officers and
directors of the Managing General Partner without receiving a sales commission
or other compensation on their sales.
WHEREAS, no subscriptions to the Partnership will be accepted after the
"Offering Termination Date," which is the first to occur of either:
o receipt of the maximum Subscription Proceeds of $40,000,000; or
o December 31, 2002.
WHEREAS, to facilitate compliance with the terms of the Dealer-Manager
Agreement and Rule 15c2-4 adopted under the Securities Exchange Act of 1934, the
Managing General Partner and the Dealer-Manager desire to have the Subscription
Proceeds deposited with the Escrow Agent and the Escrow Agent agrees to hold the
Subscription Proceeds under the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained in this Agreement, the parties to this Agreement, intending to be
legally bound, agree as follows:
1. Appointment of Escrow Agent. The Managing General Partner, the Partnership,
and the Dealer-Manager appoint the Escrow Agent as the escrow agent to
receive and to hold the Subscription Proceeds deposited with the Escrow
Agent by the Dealer-Manager and the Managing General Partner under this
Agreement, and the Escrow Agent agrees to serve in this capacity during the
term and based on the provisions of this Agreement.
2. Deposit of Subscription Proceeds. Pending receipt of the minimum
Subscription Proceeds of $1,000,000, the Dealer-Manager and the Managing
General Partner shall deposit the Subscription Proceeds of each Investor to
whom they sell Units with the Escrow Agent and shall deliver to the Escrow
Agent a copy of the Subscription Agreement of the Investor. Payment for
each subscription for Units shall be in the form of a check made payable to
"Atlas America Public #11-2002 Ltd., Escrow Agent, PNC Bank." The Escrow
Agent shall deliver a receipt to either:
(a) Anthem and the Managing General Partner for each deposit of
Subscription Proceeds made under this Agreement by Anthem;
Escrow Agreement 2
(b) Xxxxx Funding and the Managing General Partner for each deposit of
Subscription Proceeds made under this Agreement by Xxxxx Funding; or
(c) the Managing General Partner for each deposit of Subscription Proceeds
made under this Agreement by the Managing General Partner.
3. Investment of Subscription Proceeds. The Subscription Proceeds shall be
deposited in an interest bearing account maintained by the Escrow Agent.
Subscription Proceeds may be temporarily invested by the Escrow Agent only
in income producing short-term, highly liquid investments secured by the
United States government where there is appropriate safety of principal,
such as U.S. Treasury Bills. The interest earned shall be added to the
Subscription Proceeds and disbursed in accordance with the provisions of
Paragraph 4 or 5 of this Agreement, as the case may be.
4. Distribution of Subscription Proceeds. If the Escrow Agent:
(a) receives written notice from an authorized officer of the Managing
General Partner that at least the minimum Subscription Proceeds of
$1,000,000 have been received and accepted by the Managing General
Partner; and
(b) determines that Subscription Proceeds for at least $1,000,000 have
cleared the banking system and are good;
then the Escrow Agent shall promptly release and distribute to the Managing
General Partner the escrowed Subscription Proceeds which have cleared the
banking system and are good plus any interest paid and investment income
earned on the Subscription Proceeds while held by the Escrow Agent in the
escrow account.
Any remaining Subscription Proceeds, plus any interest paid and investment
income earned on the Subscription Proceeds while held by the Escrow Agent
in the escrow account, shall be promptly released and distributed to the
Managing General Partner by the Escrow Agent as the Subscription Proceeds
clear the banking system and become good.
5. Separate Partnership Account. During the continuation of the offering after
the Partnership is funded with cleared Subscription Proceeds of at least
$1,000,000 and the Escrow Agent receives the notice described in Paragraph
4 of this Agreement, and before the Offering Termination Date, any
additional Subscription Proceeds may be deposited by the Dealer-Manager and
the Managing General Partner directly in a separate Partnership account
which shall not be subject to the terms of this Agreement.
6. Distributions to Subscribers.
(a) If the Partnership is not funded as contemplated because less than the
minimum Subscription Proceeds of $1,000,000 have been received and
accepted by the Managing General Partner by twelve p.m. (noon), local
time, on the Offering Termination Date, or for any other reason, then
the Managing General Partner shall notify the Escrow Agent, and the
Escrow Agent promptly shall distribute to each Investor a refund check
made payable to the Investor in an amount equal to the Subscription
Proceeds of the Investor, plus any interest paid or investment income
earned on the Investor's Subscription Proceeds while held by the
Escrow Agent in the escrow account.
Escrow Agreement 3
(b) If a subscription for Units submitted by an Investor is rejected by
the Managing General Partner for any reason after the Subscription
Proceeds relating to the subscription have been deposited with the
Escrow Agent, then the Managing General Partner promptly shall notify
the Escrow Agent of the rejection, and the Escrow Agent shall promptly
distribute to the Investor a refund check made payable to the Investor
in an amount equal to the Subscription Proceeds of the Investor, plus
any interest paid or investment income earned on the Investor's
Subscription Proceeds while held by the Escrow Agent in the escrow
account.
7. Compensation and Expenses of Escrow Agent. The Managing General Partner
shall be solely responsible for and shall pay the compensation of the
Escrow Agent for its services under this Agreement, as provided in Appendix
1 to this Agreement and made a part of this Agreement, and the charges,
expenses (including any reasonable attorneys' fees), and other
out-of-pocket expenses incurred by the Escrow Agent in connection with the
administration of the provisions of this Agreement. The Escrow Agent shall
have no lien on the Subscription Proceeds deposited in the escrow account
unless and until the Partnership is funded with cleared Subscription
Proceeds of at least $1,000,000 and the Escrow Agent receives the notice
described in Paragraph 4 of this Agreement, at which time the Escrow Agent
shall have, and is granted, a prior lien on any property, cash, or assets
held under this Agreement, with respect to its unpaid compensation and
nonreimbursed expenses, superior to the interests of any other persons or
entities.
8. Duties of Escrow Agent. The Escrow Agent shall not be obligated to accept
any notice, make any delivery, or take any other action under this
Agreement unless the notice or request or demand for delivery or other
action is in writing and given or made by the party given the right or
charged with the obligation under this Agreement to give the notice or to
make the request or demand. In no event shall the Escrow Agent be obligated
to accept any notice, request, or demand from anyone other than the
Managing General Partner or the Dealer-Manager.
9. Liability of Escrow Agent. The Escrow Agent shall not be liable for any
damages, or have any obligations other than the duties prescribed in this
Agreement in carrying out or executing the purposes and intent of this
Agreement. However, nothing in this Agreement shall relieve the Escrow
Agent from liability arising out of its own willful misconduct or gross
negligence. The Escrow Agent's duties and obligations under this Agreement
shall be entirely administrative and not discretionary. The Escrow Agent
shall not be liable to any party to this Agreement or to any third-party as
a result of any action or omission taken or made by the Escrow Agent in
good faith. The parties to this Agreement will indemnify the Escrow Agent,
hold the Escrow Agent harmless, and reimburse the Escrow Agent from,
against and for, any and all liabilities, costs, fees and expenses
(including reasonable attorney's fees) the Escrow Agent may suffer or incur
by reason of its execution and performance of this Agreement. If any legal
questions arise concerning the Escrow Agent's duties and obligations under
this Agreement, then the Escrow Agent may consult with its counsel and rely
without liability on written opinions given to it by its counsel.
The Escrow Agent shall be protected in acting on any written notice,
request, waiver, consent, authorization, or other paper or document which
the Escrow Agent, in good faith, believes to be genuine and what it
purports to be.
If there is any disagreement between any of the parties to this Agreement,
or between them or any other person, resulting in adverse claims or demands
being made in connection with this Agreement, or if the Escrow Agent, in
good faith, is in doubt as to what action it should take under this
Agreement, then the Escrow Agent may, at its option, refuse to comply with
any claims or demands on it or refuse to take any other action under this
Agreement, so long as the disagreement continues or the doubt exists. In
any such event, the Escrow Agent shall not be or become liable in any way
or to any person for its failure or refusal to act and the Escrow Agent
shall be entitled to continue to so refrain from acting until the dispute
is resolved by the parties involved.
Escrow Agreement 4
PNC Bank is acting solely as the Escrow Agent and is not a party to, nor
has it reviewed or approved any agreement or matter of background related
to this Agreement, other than this Agreement itself, and has assumed,
without investigation, the authority of the individuals executing this
Agreement to be so authorized on behalf of the party or parties involved.
10. Resignation or Removal of Escrow Agent. The Escrow Agent may resign as such
after giving thirty days' prior written notice to the other parties to this
Agreement. Similarly, the Escrow Agent may be removed and replaced after
giving thirty days' prior written notice to the Escrow Agent by the other
parties to this Agreement. In either event, the duties of the Escrow Agent
shall terminate thirty days after the date of the notice (or as of an
earlier date as may be mutually agreeable); and the Escrow Agent shall then
deliver the balance of the Subscription Proceeds (and any interest paid or
investment income earned thereon while held by the Escrow Agent in the
escrow account) in its possession to a successor escrow agent appointed by
the other parties to this Agreement as evidenced by a written notice filed
with the Escrow Agent.
If the other parties to this Agreement are unable to agree on a successor
escrow agent or fail to appoint a successor escrow agent before the
expiration of thirty days following the date of the notice of the Escrow
Agent's resignation or removal, then the Escrow Agent may petition any
court of competent jurisdiction for the appointment of a successor escrow
agent or other appropriate relief. Any resulting appointment shall be
binding on all of the parties to this Agreement.
On acknowledgment by any successor escrow agent of the receipt of the then
remaining balance of the Subscription Proceeds (and any interest paid or
investment income earned thereon while held by the Escrow Agent in the
escrow account), the Escrow Agent shall be fully released and relieved of
all duties, responsibilities, and obligations under this Agreement.
11. Termination. This Agreement shall terminate and the Escrow Agent shall have
no further obligation with respect to this Agreement after the distribution
of all Subscription Proceeds (and any interest paid or investment income
earned thereon while held by the Escrow Agent in the escrow account) as
contemplated by this Agreement or on the written consent of all the parties
to this Agreement.
12. Notice. Any notices or instructions, or both, to be given under this
Agreement shall be validly given if set forth in writing and mailed by
certified mail, return receipt requested, as follows:
If to the Escrow Agent:
PNC Bank
Two PNC Plaza, 000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. XxXxxxxxxx
Phone: 000-000-0000
Facsimile: 000-000-0000
Escrow Agreement 5
If to the Managing General Partner:
Atlas Resources, Inc.
000 Xxxxxx Xxxx
X.X. Xxx 000
Xxxx Xxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
If to Anthem:
Anthem Securities, Inc.
000 Xxxxxx Xxxx
X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
If to Xxxxx Funding:
Xxxxx Funding, Inc.
000 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Xx.
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Any party may designate any other address to which notices and
instructions shall be sent by notice duly given in accordance with this
Agreement.
13. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance with
the laws of the Commonwealth of Pennsylvania.
(b) This Agreement shall be binding on and shall inure to the benefit of
the undersigned and their respective successors and assigns.
(c) This Agreement may be executed in multiple copies, each executed copy
to serve as an original.
Escrow Agreement 6
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
effective as of the day and year first above written.
PNC BANK
As Escrow Agent
By: /s/ Xxxxx X. XxXxxxxxxx
---------------------------------------------------
(Authorized Officer)
ATLAS RESOURCES, INC.
A Pennsylvania corporation
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------------------------
Xxxx X. Xxxxxxxxx, Senior Vice President - Direct
Participation Programs
ANTHEM SECURITIES, INC.
A Pennsylvania corporation
By: /s/ Xxxx X. Xxxxxx
---------------------------------------------------
Xxxx X. Xxxxxx, President
XXXXX FUNDING, INC.
A Pennsylvania corporation
By: /s/ Xxxxxxx X. Xxxxx, Xx.
---------------------------------------------------
Xxxxxxx X. Xxxxx, Xx., President
ATLAS AMERICA PUBLIC #11-2002 LTD.
By: ATLAS RESOURCES, INC.
Managing General Partner
By: /s/ Xxxx X. Xxxxxxxxx
---------------------------------------------------
Xxxx X. Xxxxxxxxx, Senior Vice President - Direct
Participation Programs
Escrow Agreement 7
APPENDIX I TO ESCROW AGREEMENT
Compensation for Services of Escrow Agent
Escrow Agent annual fee per year or any part thereof $52.00
-------
Escrow Agreement 8
EXHIBIT "B"
SELLING AGENT AGREEMENT
WITH ANTHEM SECURITIES, INC.
TO:
-------------------------------------------------------
RE: ATLAS AMERICA PUBLIC #11-2002 LTD.
----------------------------------
Gentlemen:
Atlas Resources, Inc. is the Managing General Partner in a Delaware
limited partnership named Atlas America Public #11-2002 Ltd., which is referred
to as the "Partnership." The Units in the Partnership, which are referred to as
the "Units," and the offering are described in the enclosed Prospectus dated
__________________, 2002, which is referred to as the "Prospectus." Prospectuses
relating to the Units have been furnished to you with this Agreement.
Our firm, Anthem Securities, Inc., which is referred to as the
"Dealer-Manager," has entered into a Dealer-Manager Agreement for sales in all
states other than Minnesota and New Hampshire, a copy of which has been
furnished to you and is incorporated in this Agreement by reference, with the
Managing General Partner and the Partnership under which the Dealer-Manager has
agreed to form a group of NASD member firms, which are referred to as the
"Selling Agents." The Selling Agents will obtain subscriptions for Units in all
states other than:
o Minnesota; and
o New Hampshire
on a "best efforts" basis under the Securities Act of 1933, as amended, which is
referred to as the "Act" and the provisions of the Prospectus.
You are invited to become one of the Selling Agents on a non-exclusive
basis. By your acceptance below you agree to act in that capacity and to use
your best efforts, in accordance with the terms and conditions of this
Agreement, to solicit subscriptions in all states other than:
o Minnesota; and
o New Hampshire.
This Agreement, however, shall not be construed to prohibit your participation
as a selling agent in Minnesota and New Hampshire under a duly executed selling
agent agreement entered into by you and any other authorized "Dealer-Manager"
for the Partnership.
1. Representations and Warranties of Selling Agent. You represent and warrant
to the Dealer-Manager that:
(a) You are a corporation duly organized, validly existing, and in good
standing under the laws of the state of your formation or of any
jurisdiction to the laws of which you are subject, with all requisite
power and authority to enter into this Agreement and to carry out your
obligations under this Agreement.
Anthem Securities, Inc. 1
Selling Agent Agreement
(b) This Agreement will be duly authorized, executed, and delivered
by you and will be a valid and binding agreement on your part in
accordance with its terms.
(c) The consummation of the transactions contemplated by this
Agreement and the Prospectus will not result in the following:
(i) any breach of any of the terms or conditions of, or
constitute a default under your Articles of Incorporation or
Bylaws, or any other indenture, agreement, or other
instrument to which you are a party; or
(ii) any violation of any order applicable to you of any court or
any federal or state regulatory body or administrative
agency having jurisdiction over you or over your affiliates.
(d) You are duly registered under the provisions of the Securities
Exchange Act of 1934, which is referred to as the "Act of 1934,"
as a dealer, and you are a member in good standing of the NASD.
You are duly registered as a broker/dealer in the states where
you are required to be registered in order to carry out your
obligations as contemplated by this Agreement and the Prospectus.
You agree to maintain all the foregoing registrations in good
standing throughout the term of the offer and sale of the Units,
and you agree to comply with all statutes and other requirements
applicable to you as a broker/dealer under those registrations.
(e) Pursuant to your appointment as a Selling Agent, you shall comply
with all the provisions of the Act, insofar as the Act applies to
your activities under this Agreement. Further, you shall not
engage in any activity which would cause the offer and/or sale of
the Units not to comply with 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, this Agreement,
and the NASD Conduct Rules including Rules 2420, 2730, 2740,
2750, and 2810(b)(2) and (b)(3), which provide as follows:
Sec. (b)(2)
Suitability
(A) A member or person associated with a member
shall not underwrite or participate in a
public offering of a direct participation
program unless standards of suitability have
been established by the program for
participants therein and such standards are
fully disclosed in the prospectus and are
consistent with the provisions of
subparagraph (B) of this section.
(B) In recommending to a participant the
purchase, sale or exchange of an interest in
a direct participation program, a member or
person associated with a member shall:
(i) have reasonable grounds to believe,
on the basis of information obtained
from the participant concerning his
investment objectives, other
investments, financial situation and
needs, and any other information
known by the member or associated
person, that:
Anthem Securities, Inc. 2
Selling Agent Agreement
(a) the participant is or will
be in a financial position
appropriate to enable him
to realize to a significant
extent the benefits
described in the
prospectus, including the
tax benefits where they are
a significant aspect of the
program;
(b) the participant has a fair
market net worth sufficient
to sustain the risks
inherent in the program,
including loss of
investment and lack of
liquidity; and
(c) the program is otherwise
suitable for the
participant; and
(ii) maintain in the files of the member
documents disclosing the basis upon
which the determination of
suitability was reached as to each
participant.
(C) Notwithstanding the provisions of
subparagraphs (A) and (B) hereof, no member
shall execute any transaction in a direct
participation program in a discretionary
account without prior written approval of
the transaction by the customer.
Sec. (b)(3)
Disclosure
(A) Prior to participating in a public offering
of a direct participation program, a member
or person associated with a member shall
have reasonable grounds to believe, based on
information made available to him by the
sponsor through a prospectus or other
materials, that all material facts are
adequately and accurately disclosed and
provide a basis for evaluating the program.
(B) In determining the adequacy of disclosed
facts pursuant to subparagraph (A) hereof, a
member or person associated with a member
shall obtain information on material facts
relating at a minimum to the following, if
relevant in view of the nature of the
program:
(i) items of compensation;
(ii) physical properties;
(iii) tax aspects;
(iv) financial stability and experience
of the sponsor;
(v) the program's conflicts and risk
factors; and
Anthem Securities, Inc. 3
Selling Agent Agreement
(vi) appraisals and other pertinent
reports.
(C) For purposes of subparagraphs (A) and (B)
hereof, a member or person associated with a
member may rely upon the results of an
inquiry conducted by another member or
members, provided that:
(i) the member or person associated with
a member has reasonable grounds to
believe that such inquiry was
conducted with due care;
(ii) the results of the inquiry were
provided to the member or person
associated with a member with the
consent of the member or members
conducting or directing the inquiry;
and
(iii) no member that participated in the
inquiry is a sponsor of the program
or an affiliate of such sponsor.
(D) Prior to executing a purchase transaction in
a direct participation program, a member or
person associated with a member shall inform
the prospective participant of all pertinent
facts relating to the liquidity and
marketability of the program during the term
of investment.
(f) You shall not offer or sell the Units in any state until you have
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.
(g) You have received copies of the Prospectus relating to the Units
and you have relied only on the statements contained in the
Prospectus and not on any other statements whatsoever, either
written or oral, with respect to the details of the offering of
Units.
(h) You agree that you shall not place any advertisement or other
solicitation with respect to the Units (including without
limitation any material for use in any newspaper, magazine, radio
or television commercial, telephone recording, motion picture, or
other public media) without the prior written approval of the
Managing General Partner, and without the prior written approval
of the form and content thereof by the Commission, the NASD and
the securities authorities of the states where such advertisement
or solicitation is to be circulated. Any such advertisements or
solicitations shall be at your expense.
(i) If a supplement or amendment to the Prospectus is prepared and
delivered to you by the Managing General Partner or the
Dealer-Manager, you agree as follows:
(i) to distribute each supplement or amendment to the Prospectus
to every person who has previously received a copy of the
Prospectus from you; and
Anthem Securities, Inc. 4
Selling Agent Agreement
(ii) to include each supplement or amendment in all future
deliveries of any Prospectus.
(j) In connection with any offer or sale of the Units, you agree to
the following:
(i) to comply in all respects with statements set forth in the
Prospectus, the Partnership Agreement, and any supplements
or amendments to the Prospectus;
(ii) not to make any statement inconsistent with the statements
in the Prospectus, the Partnership Agreement, and any
supplements or amendments to the Prospectus;
(iii) not to make any untrue or misleading statements of a
material fact in connection with the Units; and
(iv) not to provide any written information, statements, or sales
materials other than the Prospectus, the Sales Literature,
and any supplements or amendments to the Prospectus unless
approved in writing by the Managing General Partner.
(k) You agree to use your best efforts in the solicitation and sale
of the Units, including that the prospective purchasers meet the
suitability requirements set forth in the Prospectus and the
Subscription Agreement and the prospective purchasers properly
complete and execute the Subscription Agreement, which has been
provided as Exhibit (I-B) to the Partnership Agreement, Exhibit
(A) of the Prospectus, together with any additional forms
provided in any supplement or amendment to the Prospectus, or
otherwise provided to you 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 Section 11 of this Agreement.
(l) You shall comply with the requirements of Rules 2810(b)(2)(B) and
(b)(3)(D) of the NASD Conduct Rules.
(m) You agree and covenant that the representations and warranties
you make in this Agreement are and shall be true and correct at
the applicable closing date, and you shall and have fulfilled all
your obligations under this Agreement at the applicable closing
date.
2. Commissions.
(a) Subject to the receipt of the minimum required subscription
proceeds of $1,000,000 as described in Section 4(d) of the
Dealer-Manager Agreement, and the discounts set forth in Section
4(c) of the Dealer-Manager Agreement for sales to the following:
(i) the Managing General Partner, its officers, directors and
affiliates;
(ii) registered investment advisors and their clients;
Anthem Securities, Inc. 5
Selling Agent Agreement
(iii) Selling Agents and their registered representatives and
principals; and
(iv) investors who buy Units through the officers or directors of the
Managing General Partner;
the Dealer-Manager is entitled to receive from the Managing General
Partner a 7% Sales Commission, a .5% nonaccountable marketing expense
reimbursement, and a .5% reimbursement of the Selling Agents' bona
fide accountable due diligence expenses per Unit, based on the
aggregate amount of all Unit subscriptions to the Partnership secured
by the Dealer-Manager or the selling group formed by the
Dealer-Manager and accepted by the Managing General Partner.
Subject to the terms and conditions set forth in this Agreement,
including the Dealer-Manager's receipt from you of the documentation
required of you in Section 1 of this Agreement, the Dealer-Manager
agrees to pay you a 7% Sales Commission, a .5% reimbursement of your
bona fide accountable due diligence expenses and, subject to the
performance by you of your obligations under Appendix I to this
Agreement, which is incorporated in this Agreement by reference, a .5%
nonaccountable marketing expense reimbursement per Unit on Units sold
by you and accepted by the Managing General Partner.
Your Sales Commissions, the .5% reimbursement of your bona fide
accountable due diligence expenses, and the .5% nonaccountable
marketing expense reimbursement, shall be paid to you within seven
business days after the Dealer-Manager has received the Sales
Commissions, the .5% reimbursement of your bona fide accountable due
diligence expenses, and the .5% nonaccountable marketing expense
reimbursement on the subscriptions.
The Dealer-Manager is entitled to receive its Sales Commissions, the
.5% reimbursement of your bona fide accountable due diligence
expenses, and the .5% nonaccountable marketing expense reimbursement
within five business days after the conditions described in Section
4(e) of the Dealer-Manager Agreement are satisfied and approximately
every two weeks thereafter until the Offering Termination Date, which
is the earlier of:
(i) receipt of the maximum subscriptions of $40,000,000; or
(ii) December 31, 2002;
as described in Section 1 of the Dealer-Manager Agreement. The balance
shall be paid to the Dealer-Manager within fourteen business days
after the Offering Termination Date.
(b) Notwithstanding anything in this Agreement to the contrary, you agree
to waive payment of your Sales Commissions, the .5% nonaccountable
marketing expense reimbursement, and the .5% reimbursement of your
bona fide accountable due diligence expenses as set forth above in (a)
above, until the Dealer-Manager is in receipt of the related amounts
owed to it under the Dealer-Manager Agreement, and the
Dealer-Manager's liability to pay your compensation under this
Agreement shall be limited solely to the proceeds of the related
amounts owed to it under the Dealer-Manager Agreement.
Anthem Securities, Inc. 6
Selling Agent Agreement
(c) As provided in Section 4(d) of the Dealer-Manager Agreement, the
Partnership shall not begin operations unless it receives subscription
proceeds for at least $1,000,000 by December 31, 2002. If this amount
is not secured by this date, then nothing shall be payable to you and
all funds advanced by subscribers for Units shall be returned to them
with interest earned, if any.
3. Blue Sky Qualification. The Managing General Partner may elect not to
qualify or register Units in any state or jurisdiction in which it deems
the qualification or registration is not warranted for any reason in its
sole discretion. On application to the Dealer-Manager you will be informed
as to the states and jurisdictions in which the Units have been qualified
for sale or are exempt under the respective securities or "Blue Sky" laws
of those states and jurisdictions.
Notwithstanding the foregoing, the Dealer-Manager, the Partnership, and the
Managing General Partner have not assumed and will not assume any
obligation or responsibility as to your right to act as a broker/dealer
with respect to the Units in any state or jurisdiction.
4. Expense of Sale. The expenses in connection with the offer and sale of the
Units shall be payable as set forth below.
(a) The Dealer-Manager shall pay all expenses incident to the performance
of its obligations under this Agreement, including the fees and
expenses of its attorneys and accountants, even if this offering is
not successfully completed.
(b) You shall pay all expenses incident to the performance of your
obligations under this Agreement, including the fees and expenses of
your own counsel and accountants, even if this offering is not
successfully completed.
5. Conditions of Your Duties. Your obligations under this Agreement, as of the
date of this Agreement and at the applicable closing date, shall be subject
to the following:
(a) the performance by the Dealer-Manager of its obligations under this
Agreement; and
(b) the performance by the Managing General Partner of its obligations
under the Dealer-Manager Agreement.
6. Conditions of Dealer-Manager's Duties. The Dealer-Manager's obligations
under this Agreement, including the duty to pay compensation to you as set
forth in Section 2 of this Agreement, shall be subject to the following:
(a) the accuracy, as of the date of this Agreement and at the applicable
closing date as if made at the applicable closing date, of your
representations and warranties made in this Agreement;
(b) the performance by you of your obligations under this Agreement; and
(c) the Dealer-Manager's receipt, at or before the applicable closing
date, of a fully executed Subscription Agreement for each prospective
purchaser as required by Section 1(k) of this Agreement.
Anthem Securities, Inc. 7
Selling Agent Agreement
7. Indemnification.
(a) You shall indemnify and hold harmless the Dealer-Manager, the Managing
General Partner, the 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 your breach of any of your
duties and obligations, representations, or warranties under the terms
or provisions of this Agreement, and you 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 Dealer-Manager shall indemnify and hold you harmless against any
losses, claims, damages, or liabilities, joint or several, to which
you 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 Dealer-Manager's
breach of any of its duties and obligations, representations, or
warranties under the terms or provisions of this Agreement, and the
Dealer-Manager shall reimburse you 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 the 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 the 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.
8. Representations and Agreements to Survive Delivery. All representations,
warranties, and agreements of the Dealer-Manager and you in this Agreement,
including the indemnity agreements contained in Section 7 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 you or any person who controls
you within the meaning of the Act, by the Dealer-Manager, or any of
its officers, directors or any person who controls the Dealer-Manager
within the meaning of the Act, or any other indemnified party; and
(c) survive delivery of the Units.
Anthem Securities, Inc. 8
Selling Agent Agreement
9. Termination.
(a) You shall have the right to terminate this Agreement other than the
indemnification provisions of Section 7 of this Agreement by giving
notice as specified in Section 16 of this Agreement any time at or
before a closing date:
(i) if the Dealer-Manager has failed, refused, or been unable at or
before a closing date, to perform any of its obligations under
this Agreement; or
(ii) there has occurred an event materially and adversely affecting
the value of the Units.
If you elect to terminate this Agreement other than the indemnification
provisions of Section 7 of this Agreement, then the Dealer-Manager shall be
promptly notified by you by telephone, e-mail, facsimile, or telegram,
confirmed by letter.
(b) The Dealer-Manager may terminate this Agreement other than the
indemnification provisions of Section 7 of this Agreement, for any
reason and at any time, by promptly giving notice to you by telephone,
e-mail, facsimile or telegram, confirmed by letter.
10. Format of Checks/Escrow Agent. Pending receipt of the minimum subscription
proceeds of $1,000,000 as set forth in Section 4(d) of the Dealer-Manager
Agreement, the Dealer-Manager and you, including if you are a customer
carrying broker/dealer, agree that all subscribers shall be instructed to
make their checks, drafts, or money orders payable solely "Atlas Public
#11-2002 Ltd., Escrow Agent, PNC Bank," as agent for the Partnership, and
you, including if you are a customer carrying broker/dealer, agree to
comply with Rule 15c2-4 adopted under the Act of 1934.
If you receive a check, draft, or money order not conforming to the
foregoing instructions, then you shall return the check, draft, or money
order directly to the subscriber not later than the end of the next
business day following its receipt by you from the subscriber. If the
Dealer-Manager receives a check, draft, or money order not conforming to
the foregoing instructions, then the Dealer-Manager shall return the check,
draft, or money order to you not later than the end of the next business
day following its receipt by the Dealer-Manager and you shall then return
the check, draft, or money order directly to the subscriber not later than
the end of the next business day following its receipt by you from the
Dealer-Manager. Checks, drafts, or money orders received by you which
conform to the foregoing instructions shall be transmitted by you under
Section 11 "Transmittal Procedures," below.
You agree that you are bound by the terms of the Escrow Agreement, a copy
of which is attached to the Dealer-Manager Agreement as Exhibit "A."
11. Transmittal Procedures. You, including if you are a customer carrying
broker/dealer, shall transmit received investor funds in accordance with
the following procedures.
(a) Pending receipt of the minimum subscription proceeds of $1,000,000 as
set forth in Section 4(d) of the Dealer-Manager Agreement, you shall
promptly transmit, any and all checks, drafts, and money orders
received by you from subscribers and the original executed
Subscription Agreement to the Dealer-Manager by the end of the next
business day following receipt of the check, draft, or money order by
you. By the end of the next business day following its receipt of the
check, draft, or money order and the original executed subscription
documents, the Dealer-Manager shall transmit the check, draft, or
money order and a copy of the executed Subscription Agreement to the
Escrow Agent, and the original executed Subscription Agreement and a
copy of the check, draft, or money order to the Managing General
Partner.
Anthem Securities, Inc. 10
Selling Agent Agreement
(b) On receipt by you of notice from the Managing General Partner or the
Dealer-Manager that the minimum subscription proceeds of $1,000,000 as
set forth in Section 4(d) of the Dealer-Manager Agreement have been
received, you agree that all subscribers then may be instructed, in
the Managing General Partner's sole discretion, to make their checks,
drafts, or money orders payable solely "Atlas Public #11-2002 Ltd."
Thereafter, you shall promptly transmit any and all checks, drafts, and
money orders received by you from subscribers and the original executed
Subscription Agreement to the Dealer-Manager by the end of the next
business day following receipt of the check, draft, or money order by you.
By the end of the next business day following its receipt of the check,
draft, or money order and original Subscription Agreement, the
Dealer-Manager shall transmit the check, draft, or money order and the
original executed Subscription Agreement to the Managing General Partner.
12. Parties. This Agreement shall inure to the benefit of and be binding on
you, the Dealer-Manager, and any respective successors and assigns. This
Agreement shall also inure to the benefit of the indemnified parties, their
successors and assigns. This Agreement is intended to be and is for the
sole and exclusive benefit of the parties to this Agreement, and their
respective successors and assigns, and the indemnified parties and their
successors and assigns, and for the benefit of no other person. No other
person shall have any legal or equitable right, remedy or claim under or in
respect of this Agreement. No purchaser of any of the Units from you shall
be construed a successor or assign merely by reason of the purchase.
13. Relationship. You are not authorized to hold yourself out as agent of the
Dealer-Manager, the Managing General Partner, the Partnership or any other
Selling Agent. This Agreement shall not constitute you a partner of the
Managing General Partner, the Dealer-Manager, the Partnership, any general
partner of the Partnership, or any other Selling Agent, nor render the
Managing General Partner, the Dealer-Manager, the Partnership, any general
partner of the Partnership, or any other Selling Agent, liable for any of
your obligations.
14. Effective Date. This Agreement is made effective between the parties as of
the date accepted by you as indicated by your signature to this Agreement.
15. Entire Agreement, Waiver.
(a) This Agreement constitutes the entire agreement between the
Dealer-Manager and you, and shall not be amended or modified in any
way except by subsequent agreement executed in writing. Neither party
to this Agreement shall be liable or bound to the other by any
agreement except as specifically set forth in this Agreement.
(b) The Dealer-Manager and you may waive, but only in writing, any term,
condition, or requirement under this Agreement that is intended for
its benefit. However, any written waiver of any term or condition of
this Agreement shall not operate as a waiver of any other breach of
the term or condition of this Agreement. Also, any failure to enforce
any provision of this Agreement shall not operate as a waiver of that
provision or any other provision of this Agreement.
Anthem Securities, Inc. 11
Selling Agent Agreement
16. Notices.
(a) Any communications from you shall be in writing addressed to the
Dealer-Manager at X.X. Xxx 000, Xxxxxxxxxx, Xxxxxxxxxxxx 00000-0000.
(b) Any notice from the Dealer-Manager to you shall be deemed to have been
duly given if mailed, faxed or telegraphed to you at your address
shown below.
17. Complaints. The Dealer-Manager and you agree as follows:
(a) to notify the other if either receives an investor complaint in
connection with the offer or sale of Units by you;
(b) to cooperate with the other in resolving the complaint; and
(c) to cooperate in any regulatory examination of the other to the extent
it involves this Agreement or the offer or sale of Units by you.
18. Privacy. The Dealer-Manager and you each acknowledge that certain
information made available to the other under this Agreement may be deemed
nonpublic personal information under the Xxxxx-Xxxxx-Xxxxxx Act, other
federal or state privacy laws (as amended), and the rules and regulations
promulgated thereunder, which are referred to collectively as the "Privacy
Laws." The Dealer-Manager and you agree as follows:
(a) not to disclose or use the information except as required to carry out
each party's respective duties under this Agreement or as otherwise
permitted by law in the ordinary course of business;
(b) to establish and maintain procedures reasonably designated to assure
the security and privacy of all the information; and
(c) to cooperate with the other and provide reasonable assistance in
ensuring compliance with the Privacy Laws to the extent applicable to
either or both the Dealer-Manager and you.
19. Acceptance. Please confirm your agreement to become a Selling Agent under
the terms and conditions set forth above by signing and returning the
enclosed duplicate copy of this Agreement to us at the address set forth
above.
Sincerely,
, 2002 ANTHEM SECURITIES, INC.
-------------------------
Date
ATTEST:
By:
------------------------------ ------------------------------------
(SEAL) Secretary Xxxxxxx X. Xxxxx, President
ACCEPTANCE:
Anthem Securities, Inc. 12
Selling Agent Agreement
We accept your invitation to become a Selling Agent under all the terms
and conditions stated in the above Agreement and confirm that all the statements
set forth in the above Agreement are true and correct. We hereby acknowledge
receipt of the Prospectuses and Sales Literature and a copy of the
Dealer-Manager Agreement referred to above.
, 2002
------------------------- ___________________________________________,
Date a(n) __________________________ corporation,
ATTEST:
By:
------------------------------- --------------------------------------------
(SEAL) Secretary _____________________________, President
(Address)
_____________________________________________
_____________________________________________
Your CRD Number is __________________________
Your Tax ID Number is _______________________
Anthem Securities, Inc. 13
Selling Agent Agreement
APPENDIX I TO SELLING AGENT AGREEMENT
In consideration for the payment to you, as Selling Agent, by the Dealer-Manager
of a .5% nonaccountable marketing expense reimbursement as set forth in Section
2(a) of the Selling Agent Agreement, you warrant, represent, covenant, and agree
with the Dealer-Manager that you, as Selling Agent, shall do the following:
o prominently and promptly announce your participation in the offering
as Selling Agent to your registered representatives, whether by
newsletter, e-mail, mail or otherwise, which announcement also shall
advise your registered representatives to contact our Regional
Marketing Director in whose territory the registered representative is
located (the information concerning our Regional Marketing Directors
has been provided to you by separate correspondence) with a copy of
the announcement provided concurrently to the Dealer-Manager; and
o provide the Dealer-Manager with the names, telephone numbers,
addresses and e-mail addresses of your registered representatives,
which information shall be kept confidential by the Dealer-Manager and
the Managing General Partner and shall not be used for any purpose
other than the marketing of the offering as set forth in the
Dealer-Manager Agreement and the Selling Agent Agreement. Further,
you, as Selling Agent, agree that the Dealer-Manager and the Managing
General Partner may directly contact your registered representatives,
in person or otherwise, to inform them of the offering, explain the
merits and risks of the offering, and otherwise assist in your
registered representatives' efforts to solicit and sell Units.
Anthem Securities, Inc. 14
Selling Agent Agreement
