ATLAS RESOURCES PUBLIC #19-2010 PROGRAM ANTHEM SECURITIES, INC. DEALER-MANAGER AGREEMENT
Exhibit
1.1
ATLAS
RESOURCES PUBLIC #19-2010 PROGRAM
ANTHEM
SECURITIES, INC.
ANTHEM
SECURITIES, INC.
TABLE
OF CONTENTS
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Page
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1.
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Description
of Program and Units
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1
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2.
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Representations,
Warranties and Agreements of the Managing General Partner
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2
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3.
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Grant
of Authority to the Dealer-Manager
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3
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4.
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Compensation
and Fees
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3
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5.
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Covenants
of the Managing General Partner
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5
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6.
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Representations
and Warranties of the Dealer-Manager
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6
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7.
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State
Securities Registration
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11
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8.
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Expense
of Sale
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12
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9.
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Conditions
of the Dealer-Manager’s Duties
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12
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10.
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Conditions
of the Managing General Partner’s Duties
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12
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11.
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Indemnification
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12
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12.
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Representations
and Agreements to Survive Delivery
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13
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13.
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Termination
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13
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14.
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Notices
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14
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15.
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Format
of Checks/Escrow Agent
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14
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16.
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Transmittal
Procedures
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15
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17.
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Parties
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15
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18.
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Relationship
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15
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19.
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Effective
Date
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15
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20.
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Entire
Agreement, Waiver
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15
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21.
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Governing
Law
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16
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22.
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Complaints
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16
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23.
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Privacy
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16
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24.
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Anti-Money
Laundering Provision
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16
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25.
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Acceptance
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17
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Exhibit A
– Form of Escrow Agreement
Exhibit B
– Selling Agent Agreement
Anthem
Securities, Inc.
i
ANTHEM
SECURITIES, INC.
(Best
Efforts)
Anthem
Securities, Inc.
P.O. Box
926
Moon
Township, Pennsylvania 15108-0926
RE: ATLAS
RESOURCES PUBLIC #19-2010 PROGRAM
Gentlemen:
The
undersigned, Atlas Resources, LLC, which is referred to as the “Managing General
Partner,” on behalf of Atlas Resources Public #19-2010 Program, which is
referred to as the “Program,” is a series of up to three limited partnerships
formed under the Delaware Revised Uniform Limited Partnership Act 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:
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1.
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Description of Program and
Units.
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(a)
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The
Managing General Partner, a Pennsylvania limited liability company, will
be the sole managing general partner of up to three limited partnerships
which will be named as follows:
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(i)
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Atlas
Resources Public #19-2010(A) L.P.;
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(ii)
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Atlas
Resources Public #19-2010(B) L.P.;
and
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(iii)
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Atlas
Resources Public #19-2011(C) L.P.
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On behalf
of the Program and the Partnerships, a Registration Statement on Form S-1
(Registration No. 333-_______) 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 _______________, 2010 with the
Securities and Exchange Commission (the “Commission”) under the Securities Act
of 1933, as amended, 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 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:
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(i)
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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)
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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
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Anthem
Securities, Inc.
1
Terms
defined in the Prospectus and not otherwise defined in this Agreement shall have
the meanings set forth in the Prospectus.
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(b)
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The
Units will be sold at a price of $10,000 per Unit subject to the discounts
for certain investors 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
$2,000,000 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.” Also, the maximum
subscription proceeds of all of the Partnerships, in the aggregate, must
not exceed the registered amount of $750
million.
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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.
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2.
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Representations, Warranties and
Agreements of the Managing General Partner. The Managing
General Partner represents and warrants to and agrees with you
that:
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(a)
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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.
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(b)
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The
Managing General Partner shall provide to you for delivery to all offerees
and purchasers and their representatives the information and documents
that the Managing General Partner deems appropriate to comply with the Act
and applicable state securities acts, which are referred to as the “Blue
Sky” laws.
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(c)
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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.
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(d)
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Each
Partnership was duly formed under the laws of the State of Delaware and is
validly existing as a limited partnership in good standing under the laws
of Delaware with full power and authority to own its properties and
conduct its business as described in the Prospectus. 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.
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This
Agreement, when executed by you, will be a valid and binding agreement of each
Partnership and the Managing General Partner, duly authorized, executed and
delivered by them and enforceable in accordance with its terms except as may be
limited by the effect of bankruptcy, insolvency, moratorium, preferential or
fraudulent conveyance or other laws or equitable principles relating to or
affecting the rights of creditors generally, general principles of equity, and
public policy relating to claims for indemnification for securities laws
violations.
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(e)
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The
Prospectus, as supplemented or amended, does not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements in the
Prospectus, in the light of the circumstances under which they are made,
not misleading.
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Anthem
Securities, Inc.
2
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3.
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Grant of Authority to the
Dealer-Manager.
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(a)
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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 all states during the offering
period for each Partnership as described in the
Prospectus.
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(b)
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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 Financial Industry Regulatory Authority, which is referred to as
“FINRA,” (formerly known as National Association of Securities Dealers,
Inc., or NASD) and shall enter into a “Selling Agent Agreement” in
substantially the form attached to this Agreement as Exhibit
“B.”
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(c)
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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.
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4.
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Compensation and
Fees.
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(a)
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As
Dealer-Manager you shall receive from the Managing General Partner the
following compensation, based on each Unit sold to investors in a
Partnership whose subscriptions for Units are accepted by the Managing
General Partner:
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(i)
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a
2.5% Dealer-Manager fee; and
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(ii)
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a
7% Sales Commission.
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(b)
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All
or a portion of the 7% Sales Commission shall be reallowed to the Selling
Agents as described in the Selling Agent Agreement with each Selling
Agent. A portion of the 2.5% Dealer-Manager fee may be
reallowed to the wholesalers as wholesaling fees for subscriptions
obtained through their efforts. However, you may reduce the
wholesaling fees by any reimbursements made by the Managing General
Partner or the Partnership for expenses which are received by the
wholesalers in connection with the Program or expenses which are owed by
the wholesalers to the Managing General Partner or the Partnership in
connection with the Program.
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In
addition, you shall receive from the Managing General Partner
reimbursement of the Selling Agents’ bona fide due diligence expenses,
provided that any bill presented by a Selling Agent to you for
reimbursement of costs associated with the Selling Agent’s due diligence
activities must be detailed and
itemized.
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Also,
you may use a portion of your Dealer-Manager fee to pay for permissible
non-cash compensation and a .5% marketing fee. Under Rule 2810
of the FINRA Conduct Rules, non-cash compensation 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. Permissible
non-cash compensation includes the
following:
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Anthem
Securities, Inc.
3
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(i)
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an
accountable reimbursement for training and education meetings for
associated persons of the selling
agents;
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(ii)
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gifts
that do not exceed $100 per year and are not preconditioned on achievement
of a sales target;
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(iii)
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an
occasional meal, a ticket to a sporting event or the theater, or
comparable entertainment which is neither so frequent nor so extensive as
to raise any question of propriety and is not preconditioned on
achievement of a sales target; and
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(iv)
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contributions
to a non-cash compensation arrangement between a Selling Agent and its
associated persons, provided that neither the Managing General Partner nor
the Dealer-Manager directly or indirectly participates in a Selling
Agent’s organization of a permissible non-cash compensation
arrangement.
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In no
event shall the Selling Agents receive a marketing fee if it represents more
than .5% of the total units sold. However, you may, in your
discretion, reduce the amount of the marketing fee by the costs incurred by you
and the Managing General Partner for a Selling Agent’s national or regional
conferences.
You shall
retain any of the 7% Sales Commission and the 2.5% Dealer-Manager fee not
reallowed to the Selling Agents or the wholesalers.
You are
responsible for ensuring that all non-cash compensation arrangements comply with
FINRA Conduct Rule 2810. For example, payments or reimbursements by
you or the Managing General Partner may be made in connection with meetings held
by you or the Managing General Partner for the purpose of training or education
of registered representatives of a Selling Agent, only if the following
conditions are met:
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(i)
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the
registered representative obtains his Selling Agent’s prior approval to
attend the meeting and attendance by the registered representative is not
conditioned by his Selling Agent on the achievement of a sales
target;
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(ii)
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the
location of the training and education meeting is appropriate to the
purpose of the meeting as defined in FINRA Conduct Rule
2810;
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(iii)
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the
payment or reimbursement is not applied to the expenses of guests of the
registered representative;
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(iv)
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the
payment or reimbursement by you or the Managing General Partner is not
conditioned by you or the Managing General Partner on the achievement of a
sales target; and
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(v)
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the
recordkeeping requirements are met.
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(c)
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Notwithstanding
the foregoing:
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(i)
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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 and the 7% Sales Commission, which shall not
be paid to you; and
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Anthem
Securities, Inc.
4
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(ii)
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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, which shall be paid to
you.
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No more
than 5% of the total Units sold in the Partnerships shall be sold, in the
aggregate, with the discounts described above.
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(d)
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Pending
receipt and acceptance by the Managing General Partner of the minimum
subscription proceeds of $2,000,000 in each Partnership, excluding any
optional subscription of the Managing General Partner and its Affiliates
and 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.
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Unless at
least the minimum subscription proceeds of $2,000,000 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:
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(i)
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none
of your compensation as set forth in Section 4(a) of this Agreement shall
be payable to you;
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(ii)
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all
funds advanced by subscribers shall be returned to them with interest
earned; and
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(iii)
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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)
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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:
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(i)
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at
least the minimum subscription proceeds of $2,000,000 as described above
have been received by the respective Partnership and accepted by the
respective Partnership; and
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(ii)
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the
subscription proceeds have been released from the escrow account to the
respective Partnership.
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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 to you by the Managing General Partner no later
than fourteen business days after the Offering Termination Date for the
respective Partnership.
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5.
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Covenants of the Managing
General Partner. The Managing General Partner covenants
and agrees that:
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(a)
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The
Managing General Partner shall deliver to you ample copies of the
Prospectus and all amendments or supplements to the
Prospectus.
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Anthem
Securities, Inc.
5
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(b)
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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 required
to be stated therein or necessary in order to make the statements in the
Prospectus, in the light of the circumstances under which they are made,
not misleading.
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6.
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Representations and Warranties
of the Dealer-Manager. You, as the Dealer-Manager, represent and
warrant to the Managing General Partner and the respective Partnership
that:
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(a)
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You
are a corporation duly organized, validly existing and in good standing
under the laws of the state of your formation or of any jurisdiction to
the laws of which you are subject, with all requisite power and authority
to enter into this Agreement and to carry out your obligations under this
Agreement.
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(b)
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This
Agreement when accepted and approved by you 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.
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(c)
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The
consummation of the transactions contemplated by this Agreement and the
Prospectus shall not result in the
following:
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(i)
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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
instrument to which you are a party or by which you are bound;
or
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(ii)
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any
violation of any order applicable to you of any court or regulatory body
or administrative agency having jurisdiction over you or your
affiliates.
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(d)
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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 broker or dealer,
and you are a member in good standing of FINRA. 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.
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(e)
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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
FINRA Conduct Rules including Rules 2420, 2730, 2740, 2750, and Rule
2810(b)(2) and (b)(3), which provide as
follows:
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Sec.
(b)(2)
Suitability
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(A)
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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).
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Anthem
Securities, Inc.
6
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(B)
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In
recommending to a participant the purchase, sale or exchange of an
interest in a direct participation program, a member or person associated
with a member shall:
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(i)
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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:
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a.
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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;
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b.
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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
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c.
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the
program is otherwise suitable for the participant;
and
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(ii)
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maintain
in the files of the member documents disclosing the basis upon which the
determination of suitability was reached as to each
participant.
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(C)
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Notwithstanding
the provisions of subparagraphs (A) and (B) hereof, no member shall
execute any transaction in direct participation program in a discretionary
account without prior written approval of the transaction by the
customer.
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(D)
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Subparagraphs
(A) and (B), and, only in situations where the member is not affiliated
with the direct participation program, subparagraph (C) shall not apply
to:
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(i)
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a
secondary public offering of or a secondary market transaction in a unit,
depositary receipt, or other interest in a direct participation program
that is listed on a national securities exchange;
or
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(ii)
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an
initial public offering of a unit, depositary receipt or other interest in
a direct participation program for which an application for listing on a
national securities exchange has been approved by such exchange and the
applicant makes a good faith representation that it believes such listing
on an exchange will occur within a reasonable period of time following the
formation of the program.
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Anthem
Securities, Inc.
Dealer-Manager
Agreement
7
Sec.
(b)(3)
Disclosure
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(A)
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Prior
to participating in a public offering of a direct participation program or
REIT, 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.
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(B)
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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:
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(i)
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items
of compensation;
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(ii)
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physical
properties;
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(iii)
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tax
aspects;
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(iv)
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financial
stability and experience of the
sponsor;
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(v)
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the
program’s conflict and risk factors;
and
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(vi)
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appraisals
and other pertinent reports.
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(C)
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For
purposes of subparagraphs (A) or (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)
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the
member or person associated with a member has reasonable grounds to
believe that such inquiry was conducted with due
care;
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(ii)
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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
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(iii)
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no
member that participated in the inquiry is a sponsor of the program or an
affiliate of such sponsor.
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(D)
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Prior to executing a purchase
transaction in a direct participation program or REIT, 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 or REIT
during the term of the investment. Included in the pertinent facts shall
be information regarding whether the sponsor has offered prior programs or
REITs in which disclosed in the offering materials was a date or time
period at which the program or REIT might be liquidated, and whether the
prior program(s) or REIT(s) in fact liquidated on or around that date or
during the time period.
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Anthem
Securities, Inc.
Dealer-Manager
Agreement
8
You and
the Selling Agents shall maintain records on the information used to determine
that the investment in the Units is suitable and appropriate for each
subscriber, and shall maintain these records for at least six years after the
Offering Termination Date for the respective Partnership.
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(f)
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You
agree to advise the Managing General Partner in writing of each
jurisdiction in which you and the Selling Agents propose to offer or sell
the Units; and you shall not nor shall you permit any Selling Agent to
offer or sell the Units in any jurisdiction 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:
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(i)
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has
been qualified in the jurisdiction;
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(ii)
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is
exempt from the qualification requirements imposed by the jurisdiction;
or
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(iii)
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the
qualification is otherwise not
required.
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(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 the Selling Agents 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
brochure entitled “Atlas Resources Public #19-2010
Program”;
|
|
|
(ii)
|
an
article entitled “Tax Rewards with Oil and Gas
Partnerships”;
|
|
|
(iii)
|
a
brochure of tax scenarios entitled “How an Investment in Atlas Resources
Public #19-2010 Program Can Help Achieve an Investor’s Tax
Objectives”;
|
|
|
(iv)
|
a
booklet entitled “AMT – A Little History and Reducing AMT though Natural
Gas Partnerships”;
|
|
|
(v)
|
a
brochure entitled “Frequently Asked
Questions”;
|
|
|
(vi)
|
a
brochure entitled “Investing in Atlas Resources Public #19-2010
Program”;
|
|
|
(vii)
|
an
article entitled “Investment Insights – Tax
Time”;
|
|
|
(viii)
|
a
brochure entitled “Outline of Tax Consequences of Oil and Gas Drilling
Programs”;
|
|
|
(ix)
|
a
brochure entitled “Introduction to Shale
Gas”;
|
|
|
(x)
|
a
brochure entitled “Vertical and Horizontal
Fracturing”;
|
|
|
(xi)
|
a
brochure entitled “The Drilling
Process”;
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Anthem
Securities, Inc.
Dealer-Manager
Agreement
9
|
|
(xii)
|
a
PowerPoint presentation and perhaps a script entitled “Atlas Resources
Public #19-2010 Program”;
|
|
|
(xiii)
|
a
PowerPoint presentation and perhaps a script entitled “Annual Energy
Outlook 2010 Reference Case”;
|
|
|
(xiv)
|
a
flyer entitled “Key Tax Points”;
|
|
|
(xv)
|
an
article entitled “Corporations Investing In Oil and Gas
Partnerships”;
|
|
|
(xvi)
|
an
article entitled “Complementing a XXXX XXX Conversion with a Natural Gas
Drilling Partnership”;
|
|
|
(xvii)
|
a
brochure entitled “An Overlooked Use of an Atlas Oil and Gas Partnership”;
and
|
|
|
(xviii)
|
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,
FINRA 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 statement of a material fact or omit to state a
material fact necessary in order to make statements made, in light of the
circumstances under which they were made, not misleading in connection
with the Partnerships, the Units or the offering;
and
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Anthem
Securities, Inc.
Dealer-Manager
Agreement
10
|
|
(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.
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|
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(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)
|
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 jurisdictions requested by you pursuant to Section
6(f) of this Agreement; or
|
|
|
(b)
|
any
necessary action and filing any necessary forms deemed reasonable by it in
order to obtain an exemption from qualification or registration in those
jurisdictions.
|
Notwithstanding,
the Managing General Partner may elect not to qualify or register Units in any
state or jurisdiction in which it deems the qualification or registration is not
warranted for any reason in its sole discretion. The Managing General
Partner and its counsel shall inform you as to the states and jurisdictions in
which the Units have been qualified for sale or are exempt under the respective
securities or Blue Sky laws of those states and jurisdictions. The
Managing General Partner, however, has not assumed and will not assume any
obligation or responsibility as to your right or any Selling Agent’s right to
act as a broker/dealer with respect to the Units in any state or
jurisdiction.
The
Managing General Partner shall provide to you and the Selling Agents for
delivery to all offerees and purchasers and their representatives any additional
information, documents, and instruments that the Managing General Partner deems
necessary to comply with the rules, regulations, and judicial and administrative
interpretations in those states and jurisdictions for the offer and sale of the
Units in those states.
Anthem
Securities, Inc.
Dealer-Manager
Agreement
11
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;
|
|
|
(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.
|
Anthem
Securities, Inc.
Dealer-Manager
Agreement
12
|
|
(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:
|
|
|
(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 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
|
Anthem
Securities, Inc.
Dealer-Manager
Agreement
13
|
|
(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. In the
event the offering is not consummated you will only be entitled to the
reimbursement of your actual out-of-pocket expenses actually incurred in
connection with the offering.
|
|
(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 or a
Partnership to you shall be mailed, delivered, or sent by facsimile,
e-mail or telegraph, and confirmed to you at P.O. Box 926, Westpointe
Corporate Center One, 0000 Xxxxxxxxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxx
Xxxxxxxx, Xxxxxxxxxxxx 00000-0926.
|
|
|
(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 Westpointe Corporate Center One, 0000
Xxxxxxxxxx Xxxxxxx Xxxx, Xxxxx 000, Xxxx Xxxxxxxx, Xxxxxxxxxxxx
00000.
|
|
15.
|
Format of Checks/Escrow
Agent. Pending receipt of the minimum subscription
proceeds of $2,000,000 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 wire transfers
payable solely to the Escrow Agent as agent for the Partnership in which
the Units are then being offered as
follows:
|
|
|
(a)
|
“Xxxxx
Fargo Bank, N.A., Escrow Agent, Atlas Resources Public #19-2010(A)
L.P.”;
|
|
|
(b)
|
“Xxxxx
Fargo Bank, N.A., Escrow Agent, Atlas Resources Public #19-2010(B) L.P.”;
or
|
|
|
(c)
|
“Xxxxx
Fargo Bank, N.A., Escrow Agent, Atlas Resources Public #19-2011(C)
L.P.”
|
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 noon 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 noon 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, the form of which is attached to this Agreement as Exhibit
“A.”
Anthem
Securities, Inc.
Dealer-Manager
Agreement
14
|
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 $2,000,000 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
noon of the next business day following receipt of the check by the
Selling Agent. By noon 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 $2,000,000
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 noon of the next business day following receipt of the check
by the Selling Agent. By noon 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.
|
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.
|
Anthem
Securities, Inc.
Dealer-Manager
Agreement
15
|
|
(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.
|
Governing
Law. This Agreement shall be governed and construed in
accordance with the laws of the Commonwealth of
Pennsylvania.
|
|
22.
|
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.
|
|
23.
|
Privacy. You
shall:
|
|
|
(a)
|
abide
by and comply with:
|
|
(i)
|
the
privacy standards and requirements of the Xxxxx-Xxxxx-Xxxxxx Act of 1999
(the “GLB Act”);
|
|
(ii)
|
the
privacy standards and requirements of any other applicable federal or
state law; and
|
|
(iii)
|
your
own internal privacy policies and
procedures;
|
each as
may be amended from time to time; and
|
|
(b)
|
refrain
from the use or disclosure of nonpublic personal information (as defined
under the GLB Act) of all customers except as necessary to service the
customers or as otherwise necessary or required by applicable
law.
|
|
24.
|
Anti-Money Laundering
Provision. You represent to the Managing General Partner
and the Partnerships that you have established and implemented an
anti-money laundering compliance program (“AML Program”) in accordance
with applicable law, including applicable FINRA Conduct Rules, Act of 1934
Rules and Regulations and the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
Act (USA PATRIOT Act) of 2001, as amended (the “USA PATRIOT Act”),
specifically including, but not limited to, Section 352 of the
International Money Laundering Abatement and Anti-Terrorist Financing Act
of 2001 (the “Money Laundering Abatement Act”, and together with the USA
PATRIOT Act, the “AML Rules”), reasonably expected to detect and cause the
reporting of suspicious transactions in connection with the offering and
sale of the Units. You further represent that you are currently in
compliance with all AML Rules, specifically including, but not limited to,
the Customer Identification Program requirements under Section 326 of the
Money Laundering Abatement Act, and you hereby covenant to remain in
compliance with those requirements and shall, on request by the Managing
General Partner or a Partnership, provide a certification that, as of the
date of the certification:
|
|
|
(a)
|
your
AML Program is consistent with the AML Rules;
and
|
Anthem
Securities, Inc.
Dealer-Manager
Agreement
16
|
|
(b)
|
you
are currently in compliance with all AML Rules, specifically including,
but not limited to, the Customer Identification Program requirements under
Section 326 of the Money Laundering Abatement
Act.
|
|
25.
|
Acceptance. Please
confirm your agreement to 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.
|
|
Very
truly yours,
|
||
|
MANAGING
GENERAL PARTNER
|
||
|
ATLAS
RESOURCES, LLC,
|
||
|
a
Pennsylvania limited liability company
|
||
|
____________________________,
2010
|
By:
|
|
|
Date
|
Xxxx
X. Xxxxxxxxx, Senior Vice President – Direct Participation
Programs
|
|
|
PROGRAM
|
||
|
ATLAS
RESOURCES PUBLIC #19-2010 PROGRAM
|
||
|
By:
|
Atlas
Resources, LLC,
|
|
|
Managing
General Partner
|
||
|
____________________________,
2010
|
By:
|
|
|
Date
|
Xxxx
X. Xxxxxxxxx, Senior Vice President – Direct Participation
Programs
|
|
|
DEALER-MANAGER
|
||
|
ANTHEM
SECURITIES, INC.,
|
||
|
a
Pennsylvania corporation
|
||
|
____________________________,
2010
|
By:
|
|
|
Date
|
Xxxxxx
Xxxxxxxx, President
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Anthem
Securities, Inc.
Dealer-Manager
Agreement
17
EXHIBIT
“A”
ATLAS
RESOURCES PUBLIC #19-2010(A) L.P.
ESCROW
AGREEMENT
THIS AGREEMENT (the
“Agreement”) is effective as of ______________, 2010, by and among Atlas
Resources, LLC, a Pennsylvania limited liability company (the “Managing General
Partner”), Anthem Securities, Inc., a Pennsylvania corporation (“Anthem” or the
“Dealer-Manager”), Atlas Resources Public #19-2010(A) L.P., a Delaware limited
partnership (the “Partnership”) and Xxxxx Fargo Bank, N.A., 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 74,500 investor general partner interests and up to 500
limited 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 to 9.5% ($950 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. Larger
subscriptions are 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 on a “best efforts” “all or none” basis for Subscription Proceeds of
$2,000,000 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 Financial Industry
Regulatory Authority (“FINRA”), previously known as the National Association of
Securities Dealers, Inc., to participate in the offering of the Units (“Selling
Agents”).
WHEREAS, the Anthem
Dealer-Manager Agreement, the “Dealer-Manager Agreement,” provides 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:
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·
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a
2.5% Dealer-Manager fee; and
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·
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a
7% sales commission;
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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 $2,000,000, 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.
1
WHEREAS, no subscriptions to
the Partnership will be accepted after the “Offering Termination Date,” which is
the first to occur of either:
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·
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receipt
of the maximum Subscription Proceeds of $750,000,000;
or
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·
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December
31, 2010.
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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:
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1.
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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.
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2.
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Deposit of Subscription
Proceeds. Pending receipt of the minimum Subscription
Proceeds of $2,000,000, 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. In this regard, the
Selling Agents shall promptly transmit any and all checks received by them
from Investors and the original executed Subscription Agreement to the
Dealer-Manager by noon of the next business day following receipt of the
check by them. By noon of the next business day following the
Dealer-Manager’s 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.
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Payment
for each subscription for Units shall be in the form of a check or wire made
payable to the Escrow Agent as follows: “Xxxxx Fargo Bank, N.A., Escrow Agent,
Atlas Resources Public #19-2010(A) L.P.,” pending receipt of the Partnership’s
minimum Subscription Proceeds of $2,000,000. The Escrow Agent shall
hold the Subscription Proceeds in a separate account (the “Escrow
Account”).
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3.
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Investment of Subscription
Proceeds; Tax.
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(a)
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The
Subscription Proceeds shall be invested as directed in writing by the
Managing General Partner, in any of the following: bank savings accounts,
bank money market accounts, short-term certificates of deposit issued by a
bank, or short-term securities issued or guaranteed by the United States
government. In the absence of complete written instructions
from the Managing General Partner, the Subscription Proceeds shall be
deposited and invested in the Xxxxx Fargo Money Market Deposit Account,
which is further described herein on Appendix I. The Managing
General Partner confirms that it has read and understands Appendix
I. 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. The Escrow Agent shall
have no responsibility or liability for any loss which may result from any
investment or sale of investment made pursuant to
this Agreement. The parties hereto acknowledge that the
Escrow Agent is not providing investment supervision, recommendations, or
advice.
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(b)
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For
tax reporting purposes, all interest or other taxable income earned on the
Subscription Proceeds in any tax year shall be taxable to the
Partnership.
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2
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(c)
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Upon
or before the execution of this Agreement, the parties hereto shall
provide the Escrow Agent with certified tax identification numbers by
furnishing appropriate IRS forms W-9 or W-8 and other forms and documents
that the Escrow Agent may reasonably request. The parties
hereto understand that if such tax reporting documentation is not so
certified to the Escrow Agent, the Escrow Agent may be required by the
Internal Revenue Code of 1986, as amended, to withhold a portion of any
interest or other income earned on the Subscription Proceeds pursuant to
this Agreement. The Managing General Partner shall also provide
tax reporting documentation for the Investors as the Escrow Agent may
reasonably request, should the Escrow Agent be required to disburse
Subscription Proceeds or income on Subscription Proceeds back to the
Investors.
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4.
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Distribution of Subscription
Proceeds.
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(a)
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If
the Escrow Agent:
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(i)
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receives
proper written notice from an authorized officer of the Managing General
Partner that at least the minimum Subscription Proceeds of $2,000,000 have
been received, deposited with the Escrow Agent and accepted by the
Managing General Partner (a “Distribution of Subscription Proceeds
Notice”); and
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(ii)
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determines
that Subscription Proceeds for at least $2,000,000 are Distributable
Subscription Proceeds (as defined
below);
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the
Escrow Agent shall promptly release and distribute to the Managing General
Partner the Distributable Subscription Proceeds plus any interest paid and
investment income earned on the Subscription Proceeds while held by the Escrow
Agent in the Escrow Account. For purposes of this Agreement,
“Distributable Subscription Proceeds” are Subscription Proceeds which have been
deposited in the Escrow Account (1) by wire transfer; and (2) by check, but in
the case of checks only at the time that enough time has passed to permit
payments to have returned unpaid by the bank on which the check was
drawn.
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(b)
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Following
the distribution under Section 4(a), 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
released and distributed to the Managing General Partner by the Escrow
Agent promptly after the Subscription Proceeds become Distributable
Subscription Proceeds after a one business day period from the date of
deposit.
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(c)
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Escrow
Agent shall have no duty to make any disbursement, investment or other use
of Subscription Proceeds until and unless it has good and collected funds.
In the event that any checks deposited in the Escrow Account are returned
or prove uncollectible after the funds represented thereby have been
released by the Escrow Agent, then the Managing General Partner shall
promptly reimburse the Escrow Agent for any and all costs incurred for
such, upon request, and the Escrow Agent shall deliver the returned checks
directly to the Investor. The Escrow Agent shall be under no
duty or responsibility to enforce collection of any check delivered to it
hereunder.
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5.
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Separate Partnership
Account. During the continuation of the offering after
the Partnership is funded with cleared Subscription Proceeds of at least
$2,000,000 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.
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3
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6.
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Subscriptions of Pennsylvania Investors.
Notwithstanding any other provision of this Agreement to the
contrary:
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(a)
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The
Escrow Agent shall deposit Subscription Proceeds from Pennsylvania
Investors into a separate fund (“Pennsylvania Escrow Fund”) within the
Escrow Account to be held in escrow pursuant to this Agreement for up to
120 calendar days after the Subscription Proceeds of the first
Pennsylvania Investor are received by the Escrow Agent. The
Pennsylvania Escrow Fund shall be automatically renewed for additional 120
calendar day periods during the term of this Agreement. Funds shall be
promptly released from the Pennsylvania Escrow Fund and distributed to the
Managing General Partner in the same manner as described in Paragraph 4
with respect to the Escrow Fund when Escrow Agent receives a Distribution
of Subscription Proceeds Notice from an authorized officer of the Managing
General Partner that the total of all Subscription Proceeds received and
accepted by the Managing General Partner, including Subscription Proceeds
from Pennsylvania Investors and all other Subscription Proceeds (including
the minimum Subscription Proceeds of $2,000,000), total $37,500,000 or
more, and directing the Escrow Agent to make such distributions to the
Managing General Partner.
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The
parties agree that the Dealer-Manager and the Managing General Partner will
specifically identify subscriptions of Pennsylvania Investors to the Escrow
Agent by written notice(s) which shall be provided to Escrow Agent so that such
notice is received by Escrow Agent prior to submission to Escrow Agent of
Pennsylvania Subscription Proceeds by way of either wire transfer or
check. Upon receipt of each such written notice, the Escrow Agent
will not commingle those subscriptions with subscriptions of residents of other
states but rather will hold such Pennsylvania Subscription Proceeds in the
Pennsylvania Escrow Fund in the Escrow Account. Any interest and
investment income earned on such Pennsylvania Subscription Proceeds shall also
be held in the Pennsylvania Escrow Fund.
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(b)
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If
total Subscription Proceeds, including Subscription Proceeds received from
Pennsylvania Investors, of at least $37,500,000 have not been received and
accepted by the Managing General Partner at the end of the first 120 day
escrow period, the Partnership must notify the Pennsylvania Investors in
writing by certified mail or any other means whereby a receipt of delivery
is obtained within ten (10) calendar days after the end of the escrow
period that they have a right to have their Subscription Proceeds returned
to them, together with any interest earned thereon and without deduction
for any fees. If a Pennsylvania Investor requests the return of
the Investor’s Subscription Proceeds within ten (10) calendar days after
receipt of notification, the Managing General Partner must return the
Pennsylvania Investor’s Subscription Proceeds within 15 days after the
Managing General Partner’s receipt of the Pennsylvania Investor’s request,
and the Managing General Partner will promptly direct the Escrow Agent in
a signed writing to return the Pennsylvania Investor’s Subscription
Proceeds, plus any interest paid and investment income earned on the
Pennsylvania Investor’s Subscription Proceeds while held by the Escrow
Agent in the Pennsylvania Escrow Fund, directly to the Pennsylvania
Investor. Upon receipt of such signed, written direction from
the Managing General Partner, the Escrow Agent shall disburse such amount
to the Investor within three (3) Business Days after the Escrow Agent’s
receipt of such Managing General Partner’s written
direction. If the Pennsylvania Investor does not timely request
the return of the Investor’s Subscription Proceeds, then the Investor’s
Subscription Proceeds will continue to be held in the Pennsylvania Escrow
Fund within the Escrow Account for another 120 day period, as described in
Paragraph 6(a), under the terms and conditions of this Agreement and this
Paragraph 6 shall again apply to the Pennsylvania Investor’s Subscription
Proceeds.
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4
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7.
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Distributions to
Subscribers.
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(a)
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If
the Partnership is not funded as contemplated because less than the
minimum Subscription Proceeds of $2,000,000 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 that the minimum Subscription Proceeds of $2,000,000 has not
been met, and the Escrow Agent promptly shall distribute to each Investor,
for which Escrow Agent has a copy of the 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.
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(b)
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If
a subscription for Units submitted by an Investor is rejected by the
Managing General Partner for any reason after the Subscription Proceeds
relating to the subscription have been deposited with the Escrow Agent,
then the Managing General Partner promptly shall notify the Escrow Agent
in writing of the rejection, and the Escrow Agent shall promptly
distribute to the 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.
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8.
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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 II 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 $2,000,000 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.
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9.
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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. Upon or before the execution of
this Agreement, the Managing General Partner shall deliver to the Escrow
Agent an authorized signers list in the form of Appendix III to this
Agreement.
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10.
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Limitation on Liability of Escrow
Agent.
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(a)
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The
Escrow Agent shall not be liable for any action taken or omitted by it
except to the extent that a court of competent jurisdiction determines
that the Escrow Agent’s gross negligence or willful misconduct was the
primary cause of loss.
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(b)
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IN
NO EVENT SHALL THE ESCROW AGENT BE LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY
SPECIAL, INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND
WHATSOEVER (INCLUDING WITHOUT LIMITATION LOST PROFITS), EVEN IF THE ESCROW
AGENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES AND
REGARDLESS OF THE FORM OF ACTION.
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(c)
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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
accordance with this Agreement. The Escrow Agent is acting
solely as escrow agent hereunder and owes no duties, covenants or
obligations, fiduciary or otherwise, to any person by reason of this
Agreement, except as otherwise explicitly set forth in this Agreement, and
no implied duties, covenants or obligations, fiduciary or otherwise, shall
be read into this Agreement against the Escrow
Agent.
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5
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(d)
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The
Managing General Partner, Dealer-Manager and Partnership will jointly and
severally indemnify the Escrow Agent, defend and hold the Escrow Agent
harmless, and reimburse the Escrow Agent from, against and for, any and
all liabilities, claims, 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 provisions of this paragraph shall survive the
assignment or termination of this Agreement and the resignation or removal
of the Escrow Agent.
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(e)
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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.
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(f)
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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, until the Escrow Agent (i) receives a final non-appealable
order of a court of competent jurisdiction or a final non-appealable
arbitration decision directing delivery of the Subscription Proceeds, (ii)
receives a written agreement executed by each of the parties involved in
such disagreement or dispute directing delivery of the Subscription
Proceeds, in which event the Escrow Agent shall be authorized to disburse
the Subscription Proceeds in accordance with such final court order,
arbitration decision, or agreement, or (iii) files an interpleader action
in any court of competent jurisdiction, and upon the filing thereof, the
Escrow Agent shall be relieved of all liability as to the Subscription
Proceeds and shall be entitled to recover attorneys’ fees, expenses and
other costs incurred in commencing and maintaining any such interpleader
action. The Escrow Agent shall be entitled to act on any such
agreement, court order, or arbitration decision without further question,
inquiry, or consent.
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(g)
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No
provision of this Agreement shall require the Escrow Agent to risk or
advance its own funds or otherwise incur any financial liability or
potential financial liability in the performance of its duties or the
exercise of its rights hereunder.
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(h)
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The
parties agree that the Escrow Agent had no role in the preparation of the
Subscription Agreement, has not reviewed the Subscription Agreement, and
makes no representations or warranties with respect to the information
contained therein or omitted therefrom. The Escrow Agent has not reviewed
or approved any agreement or matter of background related to this
Agreement, other than this Agreement
itself.
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11.
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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 joint 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.
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6
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.
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12.
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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.
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13.
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Notice. Any
notices or instructions 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 written confirmation of receipt (originals
to be followed in the mail), or by a nationally recognized overnight
courier, as follows:
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If to the
Escrow Agent:
Xxxxx
Fargo Bank, N.A.
Four
Gateway Center, Suite 1400
Pittsburgh,
Pennsylvania 15222
Attention: Xxxxxx
Xxxxxx
Phone:
(000) 000-0000
Facsimile:
(000) 000-0000
If to the
Managing General Partner:
Atlas
Resources, LLC
Westpointe
Corporate Center One
0000
Xxxxxxxxxx Xxxxxxx Xxxx, Xxxxx 000
P.O. Box
611
Moon
Township, Pennsylvania 15108
Attention: Xxxxx
X. Xxxxx
Phone:
(000) 000-0000
Facsimile:
(000) 000-0000
7
If to
Anthem:
Anthem
Securities, Inc.
Westpointe
Corporate Center One
0000
Xxxxxxxxxx Xxxxxxx Xxxx, Xxxxx 000
P.O. Box
926
Moon
Township, Pennsylvania 15108
Attention: Xxxxxx
X. Xxxxxxxx
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 to all other parties hereto duly given in accordance with this
Agreement.
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14.
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Miscellaneous.
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(a)
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This
Agreement shall be governed by and construed in accordance with the laws
of the Commonwealth of
Pennsylvania.
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(b)
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This
Agreement shall be binding on and shall inure to the benefit of the
undersigned and their respective successors and
assigns.
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(c)
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This
Agreement may be executed in counterparts, each of which shall be deemed
an original, but all of which shall constitute the same
instrument.
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15.
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Acknowledgements. The
parties hereto acknowledge Escrow Agent has not reviewed and is not making
any recommendations with respect to the Units offered. During
the term of this Agreement, the Subscription Proceeds are not subject to
claims by creditors, by the Partnership, the Partnership’s affiliates, the
Escrow Agent, or by the Selling Agents until the proceeds have been
released to the Partnership pursuant to the terms of this
Agreement.
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[Signature
page follows]
8
IN WITNESS WHEREOF, the
parties hereto have executed this Agreement to be effective as of the day and
year first above written.
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XXXXX
FARGO BANK, N.A.
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as
Escrow Agent
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By:
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Xxxxxx
Xxxxxx, Vice President
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ATLAS
RESOURCES, LLC
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A
Pennsylvania limited liability company
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By:
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Xxxxx
X. Xxxxx, Vice President – Partnership
Administration
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ANTHEM
SECURITIES, INC.
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A
Pennsylvania corporation
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By:
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Xxxxxx
X. Xxxxxxxx, President
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ATLAS
RESOURCES PUBLIC #19-2010(A) L.P.
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By:
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ATLAS
RESOURCES, LLC
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Managing
General Partner
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By:
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Xxxxx
X. Xxxxx, Vice President – Partnership
Administration
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9
APPENDIX
I TO ESCROW AGREEMENT
Agency
and Custody Account Direction
For
Cash Balances
Xxxxx
Fargo Money Market Deposit Accounts
Direction
to use the following Xxxxx Fargo Money Market Deposit Accounts for Cash Balances
for the escrow account or accounts (the “Account”) established under the Escrow
Agreement to which this Appendix I is attached.
In the
absence of written investment instructions, the Escrow Agent is hereby directed
to deposit, as indicated below, or as the Managing General Partner shall direct
further in writing from time to time, all cash in the Account(s) in the
following money market deposit account of Xxxxx Fargo Bank, National Association
(Bank):
Xxxxx
Fargo Money Market Deposit Account (MMDA)
Amounts
on deposit in the MMDA are insured, subject to the applicable rules and
regulations of the Federal Deposit Insurance Corporation (FDIC), in the basic
FDIC insurance amount of $100,000 per depositor, per insured bank. This includes
principal and accrued interest up to a total of $100,000. Note: On May 20, 2009,
FDIC deposit insurance temporarily increased from $100,000 to $250,000 per
depositor through December 31, 2013.
The
Managing General Partner has full power to direct investments of the
Account(s).
The
Managing General Partner may change this direction at any time and that it shall
continue in effect until revoked or modified by the Managing General Partner by
written notice to the Escrow Agent.
10
APPENDIX
II 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.
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I.
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Annual
Administrative Fee Payable in Advance
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$____________
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(or
any portion thereof)
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II.
|
Remittance
of checks returned to subscribers
|
||
|
(set
out in section 6 of the governing agreement)
|
|||
|
III.
|
Wire
transfers
|
n/a
|
|
|
IV.
|
Purchase
or Sale of Securities
|
V.
Investments (document limits investment to a checking or savings account, or
certificates of deposit) such products offered by any Xxxxx Fargo Bank, N.A.
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.
11
APPENDIX
III TO ESCROW AGREEMENT
CERTIFICATE
AS TO AUTHORIZED SIGNATURES
The
specimen signatures shown below are the specimen signatures of the individuals
who have been designated as authorized representatives of Atlas Resources, LLC
and are authorized to initiate and approve transactions of all types for the
escrow account or accounts established under the Escrow Agreement to which this
Appendix III is attached, on behalf of Managing General Partner.
|
Name
/ Title
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Specimen
Signature
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|
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Name
|
Signature
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|
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||
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Title
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||
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Name
|
Signature
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|
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||
|
Title
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||
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|
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|
Name
|
Signature
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||
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Title
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||
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Name
|
Signature
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||
|
Title
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12
EXHIBIT
“B”
SELLING
AGENT AGREEMENT
WITH
ANTHEM SECURITIES, INC.
TO:
|
|
RE:
|
ATLAS RESOURCES PUBLIC
#19-2010 PROGRAM
|
Gentlemen:
Atlas
Resources, LLC will be the Managing General Partner in a series of up to three
limited partnerships organized under the Delaware Revised Uniform Limited
Partnership Act: Atlas Resources Public #19-2010(A) L.P., Atlas Resources Public
#19-2010(B) L.P. and Atlas Resources Public #19-2011(C) L.P., 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, copies of which have been furnished to you with
this Agreement.
Our firm,
Anthem Securities, Inc., which is referred to as the “Dealer-Manager,” has
entered into a Dealer-Manager Agreement for sales in all states, 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 FINRA member firms, which are
referred to as the “Selling Agents.” The Selling Agents will obtain
subscriptions for Units in each Partnership in all states 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 all states where you are duly registered or licensed as
broker/dealer.
|
1.
|
Representations and Warranties
of Selling Agent. You represent and warrant to the
Dealer-Manager that:
|
|
|
(a)
|
You
are a corporation or other entity 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 organizational documents, bylaws, any indenture, agreement, or other
instrument to which you are a party or by which you are bound;
or
|
|
Anthem
Securities, Inc.
|
|
Selling
Agent Agreement
|
1
|
|
(ii)
|
any
violation of any order applicable to you of any court, 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 broker/dealer, and
you are a member in good standing of FINRA. You are duly
registered as a broker/dealer in the jurisdictions 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 FINRA Conduct Rules including Rules 2420, 2730, 2740,
2750, and 2810(b)(2) and (b)(3), which provide as
follows:
|
Sec.
(b)(2)
Suitability
|
|
(A)
|
A
member or person associated with a member shall not underwrite or
participate in a public offering of a direct participation program unless
standards of suitability have been established by the program for
participants therein and such standards are fully disclosed in the
prospectus and are consistent with the provisions of subparagraph
(B).
|
|
|
(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
|
|
Anthem
Securities, Inc.
|
|
Selling
Agent Agreement
|
2
|
|
(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 direct participation program in a discretionary
account without prior written approval of the transaction by the
customer.
|
|
|
(D)
|
Subparagraphs
(A) and (B), and, only in situations where the member is not affiliated
with the direct participation program, subparagraph (C) shall not apply
to:
|
|
|
(i)
|
a
secondary public offering of or a secondary market transaction in a unit,
depositary receipt, or other interest in a direct participation program
that is listed on a national securities exchange;
or
|
|
|
(ii)
|
an
initial public offering of a unit, depositary receipt or other interest in
a direct participation program for which an application for listing on a
national securities exchange has been approved by such exchange and the
applicant makes a good faith representation that it believes such listing
on an exchange will occur within a reasonable period of time following the
formation of the program.
|
Sec.
(b)(3)
Disclosure
|
|
(A)
|
Prior
to participating in a public offering of a direct participation program or
REIT, 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 conflict and risk factors;
and
|
|
|
(vi)
|
appraisals
and other pertinent reports.
|
|
Anthem
Securities, Inc.
|
|
Selling
Agent Agreement
|
3
|
|
(C)
|
For
purposes of subparagraphs (A) or (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 or
REIT, 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 or REIT during the term of the
investment. Included in the pertinent facts shall be information regarding
whether the sponsor has offered prior programs or REITs in which disclosed
in the offering materials was a date or time period at which the program
or REIT might be liquidated, and whether the prior program(s) or REIT(s)
in fact liquidated on or around that date or during the time
period.
|
|
|
(f)
|
You
shall not offer or sell the Units in any jurisdiction 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 jurisdiction;
|
|
|
(ii)
|
is
exempt from the qualification requirements imposed by the jurisdiction;
or
|
|
|
(iii)
|
the
qualification is otherwise not
required.
|
|
|
(g)
|
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,
FINRA 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.
|
Anthem
Securities, Inc.
|
|
Selling
Agent Agreement
|
4
|
|
(h)
|
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
jurisdiction. Unless advised otherwise by the Managing General
Partner, you may choose to provide each offeree with the following sales
materials which are collectively referred to as the “Sales
Literature”:
|
|
(i)
|
a
brochure entitled “Atlas Resources Public #19-2010
Program”;
|
|
|
(ii)
|
an
article entitled “Tax Rewards with Oil and Gas
Partnerships”;
|
|
|
(iii)
|
a
brochure of tax scenarios entitled “How an Investment in Atlas Resources
Public #19-2010 Program Can Help Achieve an Investor’s Tax
Objectives”;
|
|
|
(iv)
|
a
booklet entitled “AMT – A Little History and Reducing AMT through Natural
Gas Partnerships”;
|
|
|
(v)
|
a
brochure entitled “Frequently Asked
Questions”;
|
|
|
(vi)
|
a
brochure entitled “Investing in Atlas Resources Public #19-2010
Program”;
|
|
|
(vii)
|
an
article entitled “Investment Insights – Tax
Time”;
|
|
|
(viii)
|
a
brochure entitled “Outline of Tax Consequences of Oil and Gas Drilling
Programs”;
|
|
|
(ix)
|
a
brochure entitled “Introduction to Shale
Gas”;
|
|
|
(x)
|
a
brochure entitled “Vertical and Horizontal
Fracturing”;
|
|
|
(xi)
|
a
brochure entitled “The Drilling
Process”;
|
|
|
(xii)
|
a
PowerPoint presentation and perhaps a script entitled “Atlas Resources
Public #19-2010 Program”;
|
|
|
(xiii)
|
a
PowerPoint presentation and perhaps a script entitled “Annual Energy
Outlook 2010 Reference Case”;
|
|
|
(xiv)
|
a
flyer entitled “Key Tax Points”;
|
|
|
(xv)
|
an
article entitled “Corporations Investing In Oil and Gas
Partnerships”;
|
|
|
(xvi)
|
an
article entitled “Complementing a XXXX XXX Conversion with a Natural Gas
Drilling Partnership”;
|
|
(xvii)
|
a
brochure entitled “An Overlooked Use of an Atlas Oil and Gas Partnership”;
and
|
|
Anthem
Securities, Inc.
|
|
Selling
Agent Agreement
|
5
|
|
(xviii)
|
possibly
other supplementary materials.
|
Any such
Sales Literature, if distributed, must have been preceded or must be accompanied
by the Prospectus.
|
|
(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:
|
|
|
(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 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; and
|
|
|
(iv)
|
not
to make any untrue statement of a material fact or omit to state a
material fact necessary in order to make statements made, in light of the
circumstances under which they were made, not misleading in connection
with the Partnerships, the Units or the
offering.
|
|
|
(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 FINRA 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.
|
You
acknowledge and agree that the Managing General Partner shall have the right to
reject any subscription at any time for any reason without liability to
it. Subscription funds and executed subscription packets shall be
transmitted as set forth in Section 11 of this Agreement.
|
|
(l)
|
You
agree and covenant that:
|
|
Anthem
Securities, Inc.
|
|
Selling
Agent Agreement
|
6
|
|
(i)
|
the
representations and warranties you make in this Agreement are and shall be
true and correct as of the date of this Agreement and 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 $2,000,000
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 clients, Selling
Agents and their registered representatives and principals, and 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 and a 2.5% Dealer-Manager Fee, 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.
|
Additionally,
the Dealer-Manager is entitled to receive from the Managing General Partner
reimbursement of the Selling Agents’ bona fide due diligence expenses per
Unit.
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, subject to the performance by you of your obligations
under Appendix I to this Agreement, which is incorporated in this
Agreement by reference; and
|
|
|
(ii)
|
reimbursement
of your bona fide due diligence expenses per Unit, provided
that any bill presented by you to the Dealer-Manager for reimbursement of
costs associated with your due diligence activities must be detailed and
itemized.
|
|
|
(iii)
|
In
addition, the Dealer-Manager or Managing General Partner may make certain
non-cash compensation arrangements with you or your registered
representatives. The permissible non-cash compensation will be
paid for:
|
|
|
(A)
|
training
and education meetings;
|
|
|
(B)
|
gifts
that do not exceed $100 per year and are not preconditioned on the
achievement of a sales target;
|
|
|
(C)
|
an
occasional meal, a ticket to a sporting event or the theater, or
comparable entertainment which is neither so frequent nor so extensive as
to raise any question of propriety and is not preconditioned on
achievement of a sales target; and
|
|
|
(D)
|
contributions
by the Dealer-Manager or Managing General Partner to a non-cash
compensation arrangement between you and your associated persons, provided
that the Dealer-Manager and Managing General Partner do not directly or
indirectly participate in your organization of the permissible non-cash
compensation arrangement.
|
|
Anthem
Securities, Inc.
|
|
Selling
Agent Agreement
|
7
|
|
(iv)
|
The
Dealer-Manager is responsible for ensuring that all non-cash compensation
arrangements comply with the restrictions on non-cash compensation in
connection with direct participation programs as set forth in FINRA
Conduct Rule 2810. For example, if the Managing General Partner
or Dealer-Manager pays or reimburses you in connection with meetings held
by the Managing General Partner or Dealer-Manager for the purpose of
training or education of your registered representatives, then the
following conditions must be met:
|
|
|
(A)
|
your
registered representative must obtain your prior approval to attend the
meeting and attendance by your registered representatives must not be
conditioned by you on the achievement of a sales
target;
|
|
|
(B)
|
the
location of the training and education meeting must be appropriate to the
purpose of the meeting, as defined in FINRA Conduct Rule
2810;
|
|
|
(C)
|
the
payment or reimbursement must not be applied to the expenses of guests of
the registered representative;
|
|
|
(D)
|
the
payment or reimbursement by the Managing General Partner or Dealer-Manager
must not be conditioned by the Managing General Partner or Dealer-Manager
on the achievement of a sales target;
and
|
|
|
(E)
|
the
appropriate records must be
maintained.
|
Non-cash
compensation 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.
Also, the
Dealer-Manager will pay you a marketing fee of .5% per Unit in partial
consideration for your marketing support as set forth in Appendix I, but your
marketing fee may be reduced, in the Dealer-Manager’s discretion, by
the Dealer-Manager’s and the Managing General Partner’s costs for your national
or regional conferences.
|
|
(v)
|
Your
sales commissions 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 of your
sales commissions and the 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 fourteen business days after the respective Partnership’s Offering
Termination Date.
|
|
Anthem
Securities, Inc.
|
|
Selling
Agent Agreement
|
8
|
|
(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 $2,000,000 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.
|
|
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
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(b)
|
the
performance by the Managing General Partner of its obligations under the
Dealer-Manager Agreement.
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6.
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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:
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|
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(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;
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(b)
|
the
performance by you of your obligations under this Agreement;
and
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(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.
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Anthem
Securities, Inc.
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Selling
Agent Agreement
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9
7. Indemnification.
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(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.
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(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.
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(c)
|
The
foregoing indemnity agreements shall extend on the same terms and
conditions to, and shall inure to the benefit of, each person, if any, who
controls each indemnified party within the meaning of the
Act.
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(d)
|
Promptly
after receipt by an indemnified party of notice of the commencement of any
action, the indemnified party shall, if a claim in respect of the action
is to be made against the indemnifying party under this Section, notify
the indemnifying party in writing of the commencement of the action; but
the omission to promptly notify the indemnifying party shall not relieve
the indemnifying party from any liability which it may have to the
indemnified party. If any action is brought against an
indemnified party, it shall notify the indemnifying party of the
commencement of the action, and the indemnifying party shall be entitled
to participate in, and, to the extent that it wishes, jointly with any
other indemnifying party similarly notified, to assume the defense of the
action, with counsel satisfactory to the indemnified and indemnifying
parties. After the indemnified party has received notice from
the agreed on counsel that the defense of the action under this paragraph
has been assumed, the indemnifying party shall not be responsible for any
legal or other expenses subsequently incurred by the indemnified party in
connection with the defense of the action other than with respect to the
agreed on counsel who assumed the defense of the
action.
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8.
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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:
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(a)
|
survive
the delivery, execution and closing of this
Agreement;
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(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
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(c)
|
survive
delivery of the Units.
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Anthem
Securities, Inc.
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Selling
Agent Agreement
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10
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9.
|
Termination.
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(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:
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(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
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(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.
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(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.
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10.
|
Format of Checks/Escrow
Agent. Pending receipt of the minimum subscription
proceeds of $2,000,000 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 wire transfers payable solely to the Escrow Agent as
agent for the Partnership in which the Units are then being offered as
follows:
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(a)
|
“Xxxxx
Fargo Bank, N.A., Escrow Agent, Atlas Resources Public #19-2010(A)
L.P.”;
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(b)
|
“Xxxxx
Fargo Bank, N.A., Escrow Agent, Atlas Resources Public #19-2010(B) L.P.”;
or
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(c)
|
“Xxxxx
Fargo Bank, N.A., Escrow Agent, Atlas Resources Public #19-2011(C)
L.P.”
|
Also,
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 noon 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 noon 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 noon 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.
|
|
Anthem
Securities, Inc.
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|
Selling
Agent Agreement
|
11
|
|
(a)
|
Pending
receipt of a Partnership’s minimum subscription proceeds of $2,000,000 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 noon
of the next business day following receipt of the check by
you. By noon of the next business day following the
Dealer-Manager’s 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.
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(b)
|
On
receipt by you of notice from the Managing General Partner or the
Dealer-Manager that a Partnership’s minimum subscription proceeds of
$2,000,000 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
wire transfers payable solely to the Partnership then being
offered.
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|
|
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 noon of the next business day following receipt of the
check by you. By noon of the next business day following the
Dealer-Manager’s 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.
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|
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.
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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.
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|
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.
|
|
Anthem
Securities, Inc.
|
|
Selling
Agent Agreement
|
12
|
|
(c)
|
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 P.O. Box 926, Moon Township, Pennsylvania
15108-0926.
|
|
|
(b)
|
Any
notice from the Dealer-Manager to you shall be deemed to have been duly
given if mailed, faxed or telegraphed to you at your address shown
below.
|
|
17.
|
Complaints. The
Dealer-Manager and you agree as
follows:
|
|
|
(a)
|
to
notify the other if either receives an investor complaint in connection
with the offer or sale of Units by
you;
|
|
|
(b)
|
to
cooperate with the other in resolving the complaint;
and
|
|
|
(c)
|
to
cooperate in any regulatory examination of the other to the extent it
involves this Agreement or the offer or sale of Units by
you.
|
|
18.
|
Privacy. The
Dealer-Manager and you each acknowledge that certain information made
available to the other under this Agreement may be deemed nonpublic
personal information under the Xxxxx-Xxxxx-Xxxxxx Act of 1999 (the
“GLB Act”) and other federal or state privacy laws (as
amended). Accordingly, you agree
to:
|
|
|
(a)
|
Abide
by and comply with:
|
|
|
(i)
|
the
privacy standards and requirements of the GLB
Act;
|
|
|
(ii)
|
the
privacy standards and requirements of any other applicable federal or
state law; and
|
|
|
(iii)
|
your
own internal privacy policies and procedures, each as may be amended from
time to time; and
|
|
|
(b)
|
refrain
from the use or disclosure of nonpublic personal information (as defined
under the GLB Act) of all your customers, except as necessary to service
your customer or as necessary or required by applicable
law.
|
|
19.
|
Anti-Money Laundering
Provision. You represent to the Dealer-Manager that you
have established and implemented an anti-money laundering compliance
program in accordance with applicable law, including applicable FINRA
Conduct Rules, rules and regulations promulgated under the Act of 1934 and
the Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act (USA PATRIOT Act) of
2001, as amended (the “USA PATRIOT Act”), specifically including, but not
limited to, Section 352 of the International Money Laundering Abatement
and Anti-Terrorist Financing Act of 2001 (the “Money Laundering Abatement
Act,” and together with the USA PATRIOT Act, the “AML Rules”), reasonably
expected to detect and cause the reporting of suspicious transactions in
connection with the offering and sale of the Units. You further represent
that you currently are in compliance with all AML Rules, specifically
including, but not limited to, the Customer Identification Program
requirements under Section 326 of the Money Laundering Abatement Act, and
you hereby covenant to remain in compliance with those requirements and
shall, on request by the Dealer-Manager, provide a certification to the
Dealer-Manager that, as of the date of the
certification:
|
|
Anthem
Securities, Inc.
|
|
Selling
Agent Agreement
|
13
|
|
(a)
|
your
AML Program is consistent with the AML Rules;
and
|
|
|
(b)
|
you
are currently in compliance with all AML Rules, specifically including,
but not limited to, the Customer Identification Program requirements under
Section 326 of the Money Laundering Abatement
Act.
|
On
request by the Dealer-Manager at any time, you will furnish a written copy of
your AML Program to the Dealer-Manager for review, and furnish a copy of the
findings and any remedial actions taken in connection with the most recent
independent testing of your AML Program.
|
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,
|
|||||
|
|
,
2010
|
ANTHEM
SECURITIES, INC.
|
|||
|
Date
|
|||||
|
ATTEST:
|
|||||
|
|
By:
|
|
|||
|
(SEAL)
|
Secretary |
Xxxxxx
Xxxxxxxx,
President
|
|||
|
Anthem
Securities, Inc.
|
|
Selling
Agent Agreement
|
14
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.
|
|
,
2010
|
|
,
|
|||||
|
Date
|
a(n)
|
|
corporation,
|
|||||
|
ATTEST:
|
||||||||
|
|
By:
|
|
||||||
|
(SEAL) Secretary
|
|
,
President
|
||||||
|
|
||||||||
|
(Address)
|
||||||||
|
|
||||||||
|
|
||||||||
|
|
||||||||
|
(Address
to Send Commissions, if different from above)
|
||||||||
|
|
||||||||
|
|
||||||||
|
|
||||||||
|
(Telephone
Number)
|
||||||||
|
Our
CRD Number is
|
|
|||||||
|
Our
Tax ID Number is
|
|
|||||||
|
Anthem
Securities, Inc.
|
|
Selling
Agent Agreement
|
15
APPENDIX
I TO SELLING AGENT AGREEMENT
In
partial consideration for the payment to you, as Selling Agent, by the
Dealer-Manager of the Sales Commission 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:
|
|
·
|
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
|
|
|
·
|
provide
the Dealer-Manager with the names, telephone numbers, addresses and e-mail
addresses of your registered representatives, which information shall be
kept confidential by the Dealer-Manager and the Managing General Partner
and shall not be used for any purpose other than the marketing of the
offering as set forth in the Dealer-Manager Agreement and the Selling
Agent Agreement. Further, you, as Selling Agent, agree that the
Dealer-Manager and the Managing General Partner may directly contact your
registered representatives, in person or otherwise,
to:
|
|
|
·
|
inform
them of the offering;
|
|
|
·
|
explain
the merits and risks of the offering;
and
|
|
|
·
|
otherwise
assist in your registered representatives’ efforts to solicit and sell
Units.
|
|
Anthem
Securities, Inc.
|
|
Selling
Agent Agreement
|
16
