EXHIBIT 1(b)
ATLAS AMERICA PUBLIC #12-2003 PROGRAM
DEALER-MANAGER AGREEMENT
WITH
XXXXX FUNDING, INC.
XXXXX FUNDING, INC.
DEALER-MANAGER AGREEMENT
TABLE OF CONTENTS
Page
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1 Description of Program and Units ......................................... 1
2 Representations, Warranties and Agreements of the Managing General Partner 2
3 Grant of Authority to the Dealer-Manager ................................. 3
4 Compensation and Fees .................................................... 3
5 Covenants of the Managing General Partner ................................ 5
6 Representations and Warranties of the Dealer-Manager ..................... 5
7 State Securities Registration ............................................ 10
8 Expense of Sale .......................................................... 11
9 Conditions of the Dealer-Manager's Duties ................................ 11
10 Conditions of the Managing General Partner's Duties ...................... 11
11 Indemnification .......................................................... 12
12 Representations and Agreements to Survive Delivery ....................... 12
13 Termination .............................................................. 13
14 Notices .................................................................. 13
15 Format of Checks/Escrow Agent ............................................ 13
16 Transmittal Procedures ................................................... 14
17 Parties .................................................................. 15
18 Relationship ............................................................. 15
19 Effective Date ........................................................... 15
20 Entire Agreement, Waiver ................................................. 15
21 Complaints ............................................................... 15
22 Privacy .................................................................. 15
23. Anti-Money Laundering Provisions.......................................... 16
Exhibit A - Form of Escrow Agreement for Atlas America Public #12-2003 Program
Exhibit B - Selling Agent Agreement
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XXXXX FUNDING, INC.
DEALER-MANAGER AGREEMENT
(Best Efforts)
RE: ATLAS AMERICA PUBLIC #12-2003 PROGRAM
-------------------------------------
Xxxxx Funding, Inc.
000 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Gentlemen:
The undersigned, Atlas Resources, Inc., which is referred to as the
"Managing General Partner," on behalf of Atlas America Public #12-2003 Program,
which is referred to as the "Program," is a series of up to three limited
partnerships to be organized under the laws of Delaware as described below.
These limited partnerships are sometimes referred to in this Agreement in the
singular as a "Partnership" or in the plural as "Partnerships." The Managing
General Partner on behalf of the Partnerships hereby confirms its agreement with
you, as Dealer-Manager, as follows:
1. Description of Program and Units.
(a) The Managing General Partner, a Pennsylvania corporation, proposes
to be the sole managing general partner of the up to four limited
partnerships to be formed under the Delaware Revised Uniform
Limited Partnership Act. The Partnerships will be named as
follows:
(i) Atlas America Public #12-2003 Limited Partnership;
(ii) Atlas America Public #12-2004(A) Limited Partnership; and
(iii) Atlas America Public #12-2004(B) Limited Partnership.
On behalf of the Program and the Partnerships, a Registration
Statement on Form S-1 (Registration No. 333-105811), relating to
the offer and sale of the limited partner and investor general
partner interests in the Partnerships which are referred to as the
"Units" was filed on June 4, 2003, with the Securities and
Exchange Commission (the "Commission") under the Securities Act of
1933, which is referred to as the "Act." The Registration
Statement has been declared effective by the Commission, and the
Partnerships and the Units are described in the Prospectus (the
"Prospectus") that forms a part of the Registration Statement. As
used in this Agreement, the terms "Prospectus" and "Registration
Statement" refer solely to the Prospectus and Registration
Statement, as amended, described above, except that:
(i) from and after the date on which any post-effective
amendment to the Registration Statement is declared
effective by the Commission, the term "Registration
Statement" shall refer to the Registration Statement as
amended by that post-effective amendment, and the term
"Prospectus" shall refer to the Prospectus then forming a
part of the Registration Statement; and
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(ii) if the Prospectus filed by the Managing General Partner
pursuant to Rule 424(b) or (c) promulgated by the
Commission under the Act differs from the Prospectus on
file with the Commission at the time the Registration
Statement or any post-effective amendment thereto shall
have become effective, the term "Prospectus" shall refer to
the Prospectus filed pursuant thereto from and after the
date on which it was filed.
Terms defined in the Prospectus and not otherwise defined in this
Agreement shall have the meanings set forth in the Prospectus.
(b) The Units will be sold 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, in a Partnership by its Offering Termination Date for
each Partnership as described in the Prospectus (the "Offering
Termination Date") the Managing General Partner may break escrow
and use the subscription proceeds for the Partnership's drilling
activities, which is referred to as the "Initial Closing Date."
The subscription period for each Partnership will be as described
in the Prospectus. However, the offering of Atlas America Public
#12-2003 Limited Partnership may not extend beyond December 31,
2003, the offering of Atlas America Public #12-2004(A) Limited
Partnership" may not extend beyond July 30, 2004, and the offering
of Atlas America Public #12-2004(B) Limited Partnership may not
extend beyond December 31, 2004. Also, the maximum subscriptions
of all the Partnerships, in the aggregate, must not exceed the
registered amount of $75 million.
The Managing General Partner will notify you and the "Selling Agents," as
defined below, of the Initial Closing Date and Offering Termination Date
for each Partnership.
2. Representations, Warranties and Agreements of the Managing General
Partner. The Managing General Partner represents and warrants to and
agrees with you that:
(a) The Partnerships composing the Program have a currently effective
Registration Statement on Form S-1, including a final Prospectus,
for the registration of the Units under the Act as described in
Section 1 of this Agreement.
(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.
(c) The Units when issued will be duly authorized and validly issued
as set forth in the Agreement of Limited Partnership of each
Partnership, which is referred to as the "Partnership Agreement,"
the form of which is included as Exhibit (A) to the Prospectus,
and subject only to the rights and obligations set forth in the
Partnership Agreement or imposed by the laws of the state of
formation of each Partnership or of any jurisdiction to the laws
of which each Partnership is subject.
(d) Each Partnership will be duly formed under the laws of the State
of Delaware and once formed will be 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.
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Each Partnership will be qualified to do business as a limited
partnership or similar entity offering limited liability in those
jurisdictions where the Managing General Partner deems the
qualification necessary to assure limited liability of the limited
partners.
(e) The 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.
(a) 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 Partnerships and gives you the exclusive
right to solicit subscriptions for the Units on a "best efforts"
basis in the states of:
(i) Minnesota; and
(ii) New Hampshire
during the offering period as described in the Prospectus.
(b) In the states of 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 to 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 in a Partnership who are situated and/or residents in
the states of 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% accountable marketing expense fee; and
(iv) a .5% reimbursement of the Selling Agents' bona fide
accountable due diligence expenses.
(b) All of 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 7% Sales Commission
and .5% accountable marketing expense fee shall be reallowed to
the Selling Agents as described in the Selling Agent Agreement
with each Selling Agent. Most, if not all, of the 2.5%
Dealer-Manager fee shall be reallowed to the wholesalers for
subscriptions obtained through their efforts less any
reimbursements for expenses which are received by
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the wholesaler in connection with the Program. You shall retain
any of the 7% Sales Commission and .5% accountable marketing
expense fee not reallowed to the Selling Agents and any of the
2.5% Dealer-Manager fee not reallowed to the wholesalers.
(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%
accountable marketing expense fee, 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% accountable
marketing expense fee, 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 in the Partnerships 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 in each
Partnership, 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 in each
Partnership 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 of a Partnership as described in Section 1 of this Agreement,
the offering of Units in that Partnership shall be terminated, in
which event:
(i) the 2.5% Dealer-Manager fee, the 7% Sales Commission, the
.5% accountable marketing expense fee, 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;
(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.
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(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 respective
Partnership and accepted by the Managing General Partner;
and
(ii) the Partnership's 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 for the respective Partnership. 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 for the
respective Partnership.
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 a Partnership or the Managing General
Partner occurs that in the opinion of the Managing General Partner
should be set forth in a supplement or amendment to the
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.
(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:
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(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 in
each Partnership, 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:
(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
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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
(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:
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(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 nor shall you permit any Selling Agent to offer or
sell the Units in Minnesota or New Hampshire 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.
You agree and shall require any Selling Agent to agree to deliver
a copy of the Prospectus to each subscriber to whom you sell the
Units at or before the completion of any sale of Units to such
subscriber (which sale shall be deemed, for the purposes of this
Agreement to occur on the date on which that subscriber delivers
subscription funds to the escrow agent), or earlier if required by
the Blue Sky or securities laws of any state. Unless advised
otherwise by the Managing General Partner, you and the Selling
Agents may choose to provide each offeree with the following,
which are collectively referred to as the "Sales Literature":
(i) a flyer entitled "Atlas America Public #12-2003 Program";
(ii) an article entitled "Tax Rewards with Oil and Gas
Partnerships";
(iii) a brochure of tax scenarios entitled "How an Investment in
Atlas America Public #12-2003 Program Can Help Achieve an
Investor's Tax Objectives";
(iv) a brochure entitled "Investing in Atlas America Public
#12-2003 Program";
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(v) a booklet entitled "Outline of Tax Consequences of Oil and
Gas Drilling Programs";
(vi) a brochure entitled "The Appalachian Basin: A Prime
Drilling Location Which Commands a Premium";
(vii) a brochure entitled "Investment Insights - Tax Time";
(viii) a brochure entitled "Frequently Asked Questions"; and
(ix) possibly other supplementary materials.
Any such Sales Literature, if distributed, must have been preceded
or must be accompanied by the Prospectus.
(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:
(i) the prior written approval of the Managing General Partner;
and
(ii) 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:
(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/or the Selling Agent;
and
(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 and
shall require any Selling Agent to 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
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(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 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:
(i) the prospective purchasers meet the suitability
requirements set forth in the Prospectus, the Subscription
Agreement, and this Agreement; and
(ii) 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.
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:
(i) the representations and warranties you make in this
Agreement are and shall be true and correct at the
applicable closing date; and
(ii) 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 of Minnesota or New
Hampshire; 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
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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.
(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 the offering of the Partnerships 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 the offering of the
Partnerships 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:
(a) the Managing General Partner's representations and warranties made
in this Agreement; and
(b) 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 of each Partnership as if made at the
applicable closing date, of your representations and warranties
made in this Agreement;
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(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 each Partnership, 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, each Partnership and its attorneys
against any losses, claims, damages or liabilities, joint or
several, to which they may become subject under the Act, the Act
of 1934, or otherwise insofar as the losses, claims, damages, or
liabilities (or actions in respect thereof) arise out of or are
based on 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.
(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:
Xxxxx Funding, Inc. 12
Dealer-Manager Agreement
(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.
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 000 Xxxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxxxxx 00000.
(c) Any notice or communication sent by you to the Managing General
Partner or a 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 of each Partnership 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 or wires
payable solely to the Escrow Agent for the Partnership in which the Units
are then being offered as follows:
(a) "Atlas Public #12-2003 Limited Partnership, Escrow Agent, National
City Bank of PA";
Xxxxx Funding, Inc. 13
Dealer-Manager Agreement
(b) "Atlas Public #12-2004(A) Limited Partnership, Escrow Agent,
National City Bank of PA"; or
(c) "Atlas Public #12-2004(B)Limited Partnership, Escrow Agent,
National City Bank";
as agent for the respective Partnership then being offered, 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. In addition, for identification purposes, wire transfers should
reference the subscriber's name and the account number of the escrow
account for the Partnership in which the Units are then being offered.
If you receive a check not conforming to the foregoing instructions, then
you shall return the check 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 directly to the subscriber not later than the
end of the next business day following its receipt from you. Checks
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 or will execute the Escrow Agreement for each
Partnership and agree that you are bound by the terms of the Escrow
Agreement executed by you, for the respective Partnership, and the
Managing General Partner, forms of which are attached to this Agreement
as Exhibits "A-1" through "A-3."
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.
(a) Pending receipt of a Partnership's 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 from a subscriber shall
promptly transmit the check and the original executed Subscription
Agreement to you, as Dealer-Manager, by the end of the next
business day following receipt of the check by the Selling Agent.
By the end of the next business day following your receipt of the
check and the original executed Subscription Agreement, you, as
Dealer-Manager, shall transmit the check and a copy of the
executed Subscription Agreement to the Escrow Agent, and the
original executed Subscription Agreement and a copy of the check
to the Managing General Partner.
(b) On receipt by you, as Dealer-Manager, of notice from the Managing
General Partner that a Partnership's 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
or wires payable solely to the Partnership in which Units are then
being offered.
Thereafter, the Selling Agents shall promptly transmit any and all
checks 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 by the
Selling Agent. By the end of the next business day following your
receipt of the check and the original executed Subscription
Agreement, you, as Dealer-Manager, shall transmit the check and
the original executed Subscription Agreement to the Managing
General Partner.
Xxxxx Funding, Inc. 14
Dealer-Manager Agreement
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 Partnerships, 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, a Partnership, or any general partner of a
Partnership, nor render the Managing General Partner, the Partnerships,
or any general partner of a 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.
(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;
Xxxxx Funding, Inc. 15
Dealer-Manager Agreement
(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.
23. Anti-Money Laundering Provision. You and each Selling Agent each
represent and warrant to the Managing General Partner that each of you
have in place and will maintain suitable and adequate "know your
customer" policies and procedures and that each of you shall comply with
all applicable laws and regulations regarding anti-money laundering
activity and will provide such documentation to the Managing General
Partner on written request.
Very truly yours,
MANAGING GENERAL PARTNER
ATLAS RESOURCES, INC.,
a Pennsylvania corporation
, 2003 By:
---------------------------- ----------------------------------
Date Xxxx X. Xxxxxxxxx, Senior Vice
President - Direct Participation
Programs
PROGRAM
ATLAS AMERICA PUBLIC #12-2003 PROGRAM
By: Atlas Resources, Inc.,
Managing General Partner
, 2003 By:
---------------------------- ----------------------------------
Date Xxxx X. Xxxxxxxxx, Senior Vice
President - Direct Participation
Programs
DEALER-MANAGER
XXXXX FUNDING, INC.,
a Pennsylvania corporation
, 2003 By:
---------------------------- ----------------------------------
Date Xxxxxxx X. Xxxxx, Xx., President
Xxxxx Funding, Inc. 16
Dealer-Manager Agreement
EXHIBIT "X-0"
XXXXX XXXXXXX XXXXXX #00-0000 LIMITED PARTNERSHIP
ESCROW AGREEMENT
THIS AGREEMENT is made to be effective as of ________________, 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
#12-2003 Limited Partnership, a Delaware limited partnership (the "Partnership")
and National City Bank of Pennsylvania, 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 7,500 limited and investor
general partner interests in the Partnership (the "Units").
WHEREAS, each Investor will be required to pay his subscription in full
on subscribing by check or wire (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:
o a 2.5% Dealer-Manager fee;
1
o a 7% sales commission;
o a .5% accountable marketing expenses fee; 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 $75,000,000; or
o December 31, 2003.
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," which is the
execution and subscription instrument signed by the Investor to evidence
his agreement to purchase Units in the Partnership. Payment for each
subscription for Units shall be in the form of a check or wire made
payable to "Atlas America Public #12-2003 Limited Partnership, Escrow
Agent, National City Bank of Pennsylvania."
3. Investment of Subscription Proceeds. The Subscription Proceeds shall be
deposited in an interest bearing account maintained by the Escrow Agent
as directed by the Managing General Partner. This may be a savings
account, bank money market account, short-term certificates of deposit
issued by a bank, or short-term certificates issued or guaranteed by the
United States
Escrow Agreement 2
government. 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 proper 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
been deposited, accepted and 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.
After the initial distribution, 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 after
a 10 day period from the date of deposit.
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 (12:00)
p.m. (noon), local time, EASTERN STANDARD 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, for which Escrow
Agent has a copy of a Subscription Agreement, 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.
(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 in writing, the Escrow Agent of the
rejection, and the Escrow Agent shall promptly distribute to the
Investor a refund check made payable to the Investor, for which
Escrow Agent has a copy of a Subscription Agreement, 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
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 proper written 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 Managing General Partner or
an authorized officer of the Managing General Partner. In no event shall
the Escrow Agent be obligated to accept any notice, request, or demand
from anyone other than the Managing General Partner.
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 jointly
and severally 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.
National City Bank of Pennsylvania 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.
Escrow Agreement 4
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 receiving thirty days' prior written notice from 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, or by facsimile with
confirmation of receipt (originals to be followed in the mail), or by a
nationally recognized overnight courier, as follows:
If to the Escrow Agent:
National City Bank
0000 Xxxx 0xx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxx XxXxxxx LOC 2111
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: Xxxxx X. Black
Phone: (000) 000-0000
Facsimile: (000) 000-0000
If to Anthem:
Anthem Securities, Inc.
000 Xxxxxx Xxxx
X.X. Xxx 000
Xxxx Xxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
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
14. The parties hereto and subscribers acknowledge Escrow Agent has not
reviewed and is not making any recommendations with respect to the
securities offered.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
effective as of the day and year first above written.
NATIONAL CITY BANK OF PENNSYLVANIA
As Escrow Agent
By:
-----------------------------------------
(Authorized Officer)
ATLAS RESOURCES, INC.
A Pennsylvania corporation
By:
-----------------------------------------
Xxxxx X. Black, Vice President -
Partnership Administration
ANTHEM SECURITIES, INC.
A Pennsylvania corporation
By:
------------------------------------------
Xxxxxx X. Xxxxxxxx, Vice President
XXXXX FUNDING, INC.
A Pennsylvania corporation
By:
------------------------------------------
Xxxxxxx X. Xxxxx, Xx., President
ATLAS AMERICA PUBLIC #12-2003 LIMITED
PARTNERSHIP
By: ATLAS RESOURCES, INC.
Managing General Partner
By:
------------------------------------------
Xxxx X. Xxxxxxxxx, Senior Vice President -
Direct Participation Programs
Escrow Agreement 7
APPENDIX I TO ESCROW AGREEMENT
Compensation for Services of Escrow Agent
REVIEW AND ACCEPTANCE FEE: $ waived
For providing initial review of the Escrow Agreement and all supporting
documents and for initial services associated with establishing the Escrow
Account. This is a one (1) time fee payable upon the opening of the account.
I. Annual Administrative Fee Payable in Advance (or $3000.00
any portion thereof)
II. Remittance of checks returned to subscribers (set 20.00
out in section 6 of the governing agreement)
III. Wire transfers n/a
IV. Purchase or Sale of Securities 100.00
V. Investments (document limits investment to a checking or savings account,
or certificates of deposit) such products offered by any National City
Bank retail branch)- fees are subject to the type of account the Managing
General Partner directs the Escrow Agent to open and to be governed by
the Escrow Agreement.
EXTRAORDINARY SERVICES:
For any services other than those covered by the aforementioned, a special per
hour charge will be made commensurate with the character of the service, time
required and responsibility involved. Such services include but are not limited
to excessive administrative time, attendance at closings, specialized reports,
and record keeping, unusual certifications, etc.
Managing General Partner agrees to report all funds in accordance with
appropriate tax treatment.
FEE SCHEDULE IS SUBJECT TO ANNUAL REVIEW AND/or ADJUSTMENT UPON AMENDMENT
THERETO.
Escrow Agreement 8
EXHIBIT "A-2"
ATLAS AMERICA PUBLIC #00-0000(X) XXXXXXX PARTNERSHIP
ESCROW AGREEMENT
THIS AGREEMENT is made to be effective as of ________________, 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
#12-2004(A) Limited Partnership, a Delaware limited partnership to be formed
(the "Partnership") and National City Bank of Pennsylvania, 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 ___________ limited and investor
general partner interests in the Partnership (the "Units").
WHEREAS, each Investor will be required to pay his subscription in full
on subscribing by check or wire (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% accountable marketing expenses fee; 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
$___________________; or
o July 30, 2004.
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," which is the
execution and subscription instrument signed by the Investor to evidence
his agreement to purchase Units in the Partnership. Payment for each
subscription for Units shall be in the form of a check or wire made
payable to "Atlas America Public #12-2004(A) Limited Partnership, Escrow
Agent, National City Bank of Pennsylvania."
3. Investment of Subscription Proceeds. The Subscription Proceeds shall be
deposited in an interest bearing account maintained by the Escrow Agent
as directed by the Managing General
Escrow Agreement 2
Partner. This may be a savings account, bank money market account,
short-term certificates of deposit issued by a bank, or short-term
certificates issued or guaranteed by the United States government. 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 proper 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
been deposited, accepted and 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.
After the initial distribution, 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 after
a 10 day period from the date of deposit.
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 (12:00)
p.m. (noon), local time, EASTERN STANDARD 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, for which Escrow
Agent has a copy of a Subscription Agreement, 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.
(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 in writing, the Escrow Agent of the
rejection, and the Escrow Agent shall promptly distribute to the
Investor a refund check made payable to the Investor, for which
Escrow Agent has a copy of a Subscription Agreement, in an amount
equal to the Subscription Proceeds of the Investor,
Escrow Agreement 3
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 proper written 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 Managing General Partner or
an authorized officer of the Managing General Partner. In no event shall
the Escrow Agent be obligated to accept any notice, request, or demand
from anyone other than the Managing General Partner.
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 jointly
and severally 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
National City Bank of Pennsylvania 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 receiving thirty days' prior written notice from 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, or by facsimile with
confirmation of receipt (originals to be followed in the mail), or by a
nationally recognized overnight courier, as follows:
If to the Escrow Agent:
National City Bank
0000 Xxxx 0xx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxx XxXxxxx LOC 2111
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: Xxxxx X. Black
Phone: (000) 000-0000
Facsimile: (000) 000-0000
If to Anthem:
Anthem Securities, Inc.
000 Xxxxxx Xxxx
X.X. Xxx 000
Xxxx Xxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
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
14. The parties hereto and subscribers acknowledge Escrow Agent has not
reviewed and is not making any recommendations with respect to the
securities offered.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
effective as of the day and year first above written.
NATIONAL CITY BANK OF PENNSYLVANIA
As Escrow Agent
By:
------------------------------------------
(Authorized Officer)
ATLAS RESOURCES, INC.
A Pennsylvania corporation
By:
------------------------------------------
Xxxxx X. Black, Vice President -
Partnership Administration
ANTHEM SECURITIES, INC.
A Pennsylvania corporation
By:
-------------------------------------------
Xxxxxx X. Xxxxxxxx, Vice President
XXXXX FUNDING, INC.
A Pennsylvania corporation
By:
-------------------------------------------
Xxxxxxx X. Xxxxx, Xx., President
ATLAS AMERICA PUBLIC #00-0000(X) XXXXXXX
PARTNERSHIP
By: ATLAS RESOURCES, INC.
Managing General Partner
By:
-------------------------------------------
Xxxx X. Xxxxxxxxx, Senior Vice President -
Direct Participation Programs
Escrow Agreement 7
APPENDIX I TO ESCROW AGREEMENT
Compensation for Services of Escrow Agent
REVIEW AND ACCEPTANCE FEE: $ waived
For providing initial review of the Escrow Agreement and all supporting
documents and for initial services associated with establishing the Escrow
Account. This is a one (1) time fee payable upon the opening of the account.
I. Annual Administrative Fee Payable in Advance $3000.00
(or any portion thereof)
II. Remittance of checks returned to subscribers 20.00
(set out in section 6 of the governing agreement)
III. Wire transfers n/a
IV. Purchase or Sale of Securities 100.00
V. Investments (document limits investment to a checking or savings
account, or certificates of deposit) such products offered by any
National City Bank retail branch)- fees are subject to the type of
account the Managing General Partner directs the Escrow Agent to open
and to be governed by the Escrow Agreement.
EXTRAORDINARY SERVICES:
For any services other than those covered by the aforementioned, a special per
hour charge will be made commensurate with the character of the service, time
required and responsibility involved. Such services include but are not limited
to excessive administrative time, attendance at closings, specialized reports,
and record keeping, unusual certifications, etc.
Managing General Partner agrees to report all funds in accordance with
appropriate tax treatment.
FEE SCHEDULE IS SUBJECT TO ANNUAL REVIEW AND/or ADJUSTMENT UPON AMENDMENT
THERETO.
Escrow Agreement 8
EXHIBIT "A-3"
ATLAS AMERICA PUBLIC #00-0000(X) XXXXXXX PARTNERSHIP
ESCROW AGREEMENT
THIS AGREEMENT is made to be effective as of ________________, 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
#12-2004(B) Limited Partnership, a Delaware limited partnership to be formed
(the "Partnership") and National City Bank of Pennsylvania, 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 __________ limited and investor
general partner interests in the Partnership (the "Units").
WHEREAS, each Investor will be required to pay his subscription in full
on subscribing by check or wire (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% accountable marketing expenses fee; 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
$___________________; or
o December 31, 2004.
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," which is the
execution and subscription instrument signed by the Investor to evidence
his agreement to purchase Units in the Partnership. Payment for each
subscription for Units shall be in the form of a check or wire made
payable to "Atlas America Public #12-2004(B) Limited Partnership, Escrow
Agent, National City Bank of Pennsylvania."
3. Investment of Subscription Proceeds. The Subscription Proceeds shall be
deposited in an interest bearing account maintained by the Escrow Agent
as directed by the Managing General
Escrow Agreement 2
Partner. This may be a savings account, bank money market account,
short-term certificates of deposit issued by a bank, or short-term
certificates issued or guaranteed by the United States government. 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 proper 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
been deposited, accepted and 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.
After the initial distribution, 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 after
a 10 day period from the date of deposit.
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 (12:00)
p.m. (noon), local time, EASTERN STANDARD 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, for which Escrow
Agent has a copy of a Subscription Agreement, 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.
(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 in writing, the Escrow Agent of the
rejection, and the Escrow Agent shall promptly distribute to the
Investor a refund check made payable to the Investor, for which
Escrow Agent has a copy of a Subscription Agreement, in an amount
equal to the Subscription Proceeds of the Investor,
Escrow Agreement 3
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 proper written 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 Managing General Partner or
an authorized officer of the Managing General Partner. In no event shall
the Escrow Agent be obligated to accept any notice, request, or demand
from anyone other than the Managing General Partner.
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 jointly
and severally 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
National City Bank of Pennsylvania 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 receiving thirty days' prior written notice from 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, or by facsimile with
confirmation of receipt (originals to be followed in the mail), or by a
nationally recognized overnight courier, as follows:
If to the Escrow Agent:
National City Bank
0000 Xxxx 0xx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxx XxXxxxx LOC 2111
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: Xxxxx X. Black
Phone: (000) 000-0000
Facsimile: (000) 000-0000
If to Anthem:
Anthem Securities, Inc.
000 Xxxxxx Xxxx
X.X. Xxx 000
Xxxx Xxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
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
14. The parties hereto and subscribers acknowledge Escrow Agent has not
reviewed and is not making any recommendations with respect to the
securities offered.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
effective as of the day and year first above written.
NATIONAL CITY BANK OF
PENNSYLVANIA
As Escrow Agent
By:
-----------------------------------------
(Authorized Officer)
ATLAS RESOURCES, INC.
A Pennsylvania corporation
By:
-----------------------------------------
Xxxxx X. Black, Vice President -
Partnership Administration
ANTHEM SECURITIES, INC.
A Pennsylvania corporation
By:
------------------------------------------
Xxxxxx X. Xxxxxxxx, Vice President
XXXXX FUNDING, INC.
A Pennsylvania corporation
By:
------------------------------------------
Xxxxxxx X. Xxxxx, Xx., President
ATLAS AMERICA PUBLIC #00-0000(X) XXXXXXX
PARTNERSHIP
By: ATLAS RESOURCES, INC.
Managing General Partner
By:
------------------------------------------
Xxxx X. Xxxxxxxxx, Senior Vice President -
Direct Participation Programs
Escrow Agreement 7
APPENDIX I TO ESCROW AGREEMENT
Compensation for Services of Escrow Agent
REVIEW AND ACCEPTANCE FEE: $ waived
For providing initial review of the Escrow Agreement and all supporting
documents and for initial services associated with establishing the Escrow
Account. This is a one (1) time fee payable upon the opening of the account.
I. Annual Administrative Fee Payable in Advance $3000.00
(or any portion thereof)
II. Remittance of checks returned to subscribers 20.00
(set out in section 6 of the governing agreement)
III. Wire transfers n/a
IV. Purchase or Sale of Securities 100.00
V. Investments (document limits investment to a checking or savings
account, or certificates of deposit) such products offered by any
National City Bank retail branch)- fees are subject to the type of
account the Managing General Partner directs the Escrow Agent to open
and to be governed by the Escrow Agreement.
EXTRAORDINARY SERVICES:
For any services other than those covered by the aforementioned, a special per
hour charge will be made commensurate with the character of the service, time
required and responsibility involved. Such services include but are not limited
to excessive administrative time, attendance at closings, specialized reports,
and record keeping, unusual certifications, etc.
Managing General Partner agrees to report all funds in accordance with
appropriate tax treatment.
FEE SCHEDULE IS SUBJECT TO ANNUAL REVIEW AND/OR ADJUSTMENT UPON AMENDMENT
THERETO.
Escrow Agreement 8
EXHIBIT "B"
SELLING AGENT AGREEMENT
WITH XXXXX FUNDING, INC.
TO:
-------------------------------------------------------
RE: ATLAS AMERICA PUBLIC #12-2003 PROGRAM
-------------------------------------
Gentlemen:
Atlas Resources, Inc. will be the Managing General Partner in a series
of up to three limited partnerships to be organized under the Delaware Revised
Uniform Limited Partnership Act:
o Atlas America Public #12-2003 Limited Partnership;
o Atlas America Public #12-2004(A) Limited Partnership; and
o Atlas America Public #12-2004(B) Limited Partnership.
which are referred to as the "Partnership" or the "Partnerships." The Units in
the Partnerships, which are referred to as the "Units," and the offering are
described in the Prospectus, which is referred to as the "Prospectus."
Prospectuses relating to the Units have been furnished to you with this
Agreement.
Our firm, Xxxxx Funding, Inc., which is referred to as the
"Dealer-Manager," has entered into a Dealer-Manager Agreement for sales in the
states of 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 Partnerships 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 each Partnership in the
states of:
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 for Units in each Partnership at the time
the Partnership is being offered as provided in Section 1 of the Dealer-Manager
Agreement in the states of:
o Minnesota; and
o New Hampshire.
Xxxxx Funding, Inc. 1
Selling Agent Agreement
This Agreement, however, shall not be construed to prohibit your participation
as a selling agent in states other than Minnesota and New Hampshire under a duly
executed selling agent agreement entered into by you and any other authorized
"Dealer-Manager" for the Partnerships.
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.
(b) This Agreement when accepted and approved by you 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
Xxxxx Funding, Inc. 2
Selling Agent Agreement
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:
(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:
Xxxxx Funding, Inc. 3
Selling Agent Agreement
(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
(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 the states of
Minnesota and New Hampshire 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 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.
You shall deliver a copy of the Prospectus to each subscriber
to whom you sell the Units at or before the completion of any
sale of Units to such subscriber (which sale shall be deemed,
for the purposes of this Agreement to occur on the date on
which that subscriber delivers subscription funds to the
escrow agent), or earlier if required by the blue sky or
securities laws of any state. Unless advised otherwise by the
Managing General Partner,
Xxxxx Funding, Inc. 4
Selling Agent Agreement
you may choose to provide each offeree with the following
sales materials which are collectively referred to as the
"Sales Literature":
(i) a flyer entitled "Atlas America Public #12-2003
Program";
(ii) an article entitled "Tax Rewards with Oil and Gas
Partnerships";
(iii) a brochure of tax scenarios entitled "How an
Investment in Atlas America Public #12-2003 Program
Can Help Achieve an Investor's Tax Objectives";
(iv) a brochure entitled "Investing in Atlas America
Public #12-2003 Program";
(v) a booklet entitled "Outline of Tax Consequences of
Oil and Gas Drilling Programs";
(vi) a brochure entitled "The Appalachian Basin: A Prime
Drilling Location Which Commands a Premium";
(vii) a brochure entitled "Investment Insights - Tax Time";
(viii) a brochure entitled "Frequently Asked Questions"; and
(ix) possibly other supplementary materials.
Any such Sales Literature, if distributed, must have been
preceded or must be accompanied by the Prospectus
(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:
(i) the prior written approval of the Managing General
Partner; and
(ii) 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
(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:
Xxxxx Funding, Inc. 5
Selling Agent Agreement
(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:
(i) you comply with all the provisions of 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;
(ii) the prospective purchasers meet the suitability
requirements set forth in the Prospectus, the
Subscription Agreement, and this Agreement; and
(iii) 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) Although not anticipated, if you assist in any transfers of
the Units, then 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:
(i) the representations and warranties you make in this
Agreement are and shall be true and correct at the
applicable closing date; and
(ii) 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
Managing General Partner, its officers, directors and
affiliates, registered investment advisors and their
Xxxxx Funding, Inc. 6
Selling Agent Agreement
clients, Selling Agents and their registered representatives
and principals, 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% accountable
marketing expense fee, 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 a
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 on Units sold
by you and accepted by the Managing General Partner:
(i) a 7% Sales Commission per Unit subject to a reduction
as discussed in (iv) below for non-cash compensation,
which means any form of compensation received in
connection with the sale of the Units that is not
cash compensation, including but not limited to
merchandise, gifts and prizes, travel expenses, meals
and lodging;
(ii) up to a .5% reimbursement of your bona fide
accountable due diligence expenses per Unit; and
(iii) subject to the performance by you of your obligations
under Appendix I to this Agreement, which is
incorporated in this Agreement by reference, up to a
.5% reimbursement of your bona fide accountable
marketing expenses, which are presented to and
approved in advance by the Dealer-Manager, per Unit.
An example of bona fide accountable marketing
expenses which would be reimbursed by the
Dealer-Manager to the extent they are approved in
advance by the Dealer-Manager are your expenses
associated with retail seminars (which do not exceed
.5% per Unit). In addition, the Dealer-Manager or
Managing General Partner may make certain non-cash
compensation arrangements with your registered
representatives, such as payment or reimbursement by
the Managing General Partner in connection with
meetings held by the Managing General Partner for the
purpose of training or education of your registered
representatives, provided that the registered
representative obtains your prior approval to attend
the meeting and attendance by your registered
representatives is not conditioned by you on the
achievement of a sales target, the location is
appropriate to the purpose of the meeting, which
means an office of the Managing General Partner, or a
facility located in the vicinity of the office, or a
regional location with respect to regional meetings,
the payment or reimbursement is not applied to the
expenses of guests of the registered representative,
and the payment or reimbursement by the Managing
General Partner is not conditioned by the Managing
General Partner on the achievement of a sales target.
(iv) Any non-cash compensation arrangements made by the
Dealer-Manager or the Managing General Partner with
your registered representatives, which are subject to
your prior approval as described in (iii) above, will
first be applied against the .5% per Unit available
for reimbursement of your bona fide accountable
marketing expenses by the Dealer-Manager. To the
extent these
Xxxxx Funding, Inc. 7
Selling Agent Agreement
non-cash compensation arrangements exceed .5% per
Unit, either alone or when added to the
Dealer-Manager's reimbursement of your other bona
fide accountable marketing expenses as described in
(iii) above, then the excess amount of these non-cash
compensation arrangements over the .5% per Unit shall
be deducted from your 7% Sales Commission per Unit.
(v) Your compensation and reimbursements which are owed
to you as set forth above shall be paid to you within
seven business days after the Dealer-Manager has
received the related amounts owed to it under the
Dealer-Manager Agreement, which the Dealer-Manager is
entitled to receive 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
respective Partnership's Offering Termination Date,
which is described in Section 1 of the Dealer-Manager
Agreement. The balance shall be paid to the
Dealer-Manager within fourteen business days after
the respective Partnership's Offering Termination
Date.
(b) Notwithstanding anything in this Agreement to the contrary,
you agree to waive payment of your compensation and
reimbursements which are owed to you as set forth 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 and
reimbursements under this Agreement shall be limited solely to
the proceeds of the related amounts owed to it under the
Dealer-Manager Agreement.
(c) As provided in Section 4(d) of the Dealer-Manager Agreement, a
Partnership shall not begin operations unless it receives
subscription proceeds for at least $1,000,000 by its
respective Offering Termination Date. If this amount is not
secured by the respective Partnership's Offering Termination
Date, then nothing shall be payable to you for the respective
Partnership and all funds advanced by subscribers for Units in
the respective Partnership 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 Partnerships,
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 the offering of any or all of the Partnerships 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 the
offering of any or all of the Partnerships is not successfully
completed.
Xxxxx Funding, Inc. 8
Selling Agent Agreement
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 and
reimbursements 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.
7. Indemnification.
(a) You shall indemnify and hold harmless the Dealer-Manager, the
Managing General Partner, each Partnership and its attorneys
against any losses, claims, damages or liabilities, joint or
several, to which they may become subject under the Act, the
Act of 1934, or otherwise insofar as the losses, claims,
damages, or liabilities (or actions in respect thereof) arise
out of or are based on 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
Xxxxx Funding, Inc. 9
Selling Agent Agreement
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.
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 or wires payable solely to the
Escrow Agent for the Partnership in which the Units are then being
offered as follows:
Xxxxx Funding, Inc. 10
Selling Agent Agreement
(a) "Atlas Public #12-2003 Limited Partnership, Escrow Agent,
National City Bank of PA";
(b) "Atlas Public #12-2004(A)Limited Partnership, Escrow Agent,
National City Bank of PA"; or
(c) "Atlas Public #12-2004(B)Limited Partnership, Escrow Agent,
National City Bank";
as agent for the respective Partnership then being offered, and you,
including if you are a customer carrying broker/dealer, agree to comply
with Rule 15c2-4 adopted under the Act of 1934. In addition, for
identification purposes, wire transfers should reference the
subscriber's name and the account number of the escrow account for the
Partnership in which the Units are then being offered.
If you receive a check not conforming to the foregoing instructions,
then you shall return the check 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 not conforming
to the foregoing instructions, then the Dealer-Manager shall return the
check 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
directly to the subscriber not later than the end of the next business
day following its receipt by you from the Dealer-Manager. Checks
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 a Partnership's 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 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 by
you. By the end of the next business day following its receipt
of the check and the original executed subscription documents,
the Dealer-Manager shall transmit the check and a copy of the
executed Subscription Agreement to the Escrow Agent, and the
original executed Subscription Agreement and a copy of the
check to the Managing General Partner.
(b) On receipt by you of notice from the Managing General Partner
or the Dealer-Manager that a Partnership's 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 or wires payable solely to the Partnership then being
offered.
Thereafter, you shall promptly transmit any and all checks
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 by you. By
the end of the next business day following its receipt of the
check and original Subscription Agreement, the Dealer-Manager
shall transmit the check and the original executed
Subscription Agreement to the Managing General Partner.
Xxxxx Funding, Inc. 11
Selling Agent Agreement
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, including 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, a Partnership or any
other Selling Agent. This Agreement shall not constitute you a partner
of the Managing General Partner, the Dealer-Manager, a Partnership, any
general partner of a Partnership, or any other Selling Agent, nor
render the Managing General Partner, the Dealer-Manager, the
Partnerships, any general partner of a 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.
16. Notices.
(a) Any communications from you shall be in writing addressed to
the Dealer-Manager at 000 Xxxxxxxx Xxxx, Xxxxxxxxxx,
Xxxxxxxxxxxx 00000.
(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.
Xxxxx Funding, Inc. 12
Selling Agent Agreement
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. Anti-Money Laundering Provision. You represent and warrant to the
Managing General Partner and the Dealer-Manager that you have in place
and will maintain suitable and adequate "know your customer" policies
and procedures and that you shall comply with all applicable laws and
regulations regarding anti-money laundering activity and will provide
such documentation to the Managing General Partner and the
Dealer-Manager on written request.
20. 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,
, 2003 XXXXX FUNDING, INC.
---------------------------
Date
ATTEST:
By:
--------------------------- ----------------------------------
(SEAL) Secretary Xxxxxxx X. Xxxxx, Xx., President
Xxxxx Funding, Inc. 13
Selling Agent Agreement
ACCEPTANCE:
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.
_____________________________ , 2003 _____________________________ ,
Date a(n) _____________ corporation,
ATTEST:
______________________________ By: ___________________________
(SEAL) Secretary ________________, President
_______________________________
(Address)
_______________________________
_______________________________
_______________________________
(Telephone Number)
Your CRD Number is ____________
Your Tax ID Number is _________
Xxxxx Funding, Inc. 14
Selling Agent Agreement
APPENDIX I TO SELLING AGENT AGREEMENT
In partial consideration for the payment to you, as Selling Agent, by the
Dealer-Manager of up to a .5% reimbursement of your bona fide accountable
marketing expenses 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:
o inform them of the offering;
o explain the merits and risks of the offering; and
o otherwise assist in your registered representatives'
efforts to solicit and sell Units.
Xxxxx Funding, Inc. 15
Selling Agent Agreement
