EXHIBIT 1(a)
ATLAS AMERICA PUBLIC #12-2003 PROGRAM
DEALER-MANAGER AGREEMENT
WITH
ANTHEM SECURITIES, INC.
ANTHEM SECURITIES, INC.
DEALER-MANAGER AGREEMENT
TABLE OF CONTENTS
Page
----
1 Description of Program and Units ......................................... 1
2 Representations, Warranties and Agreements of the Managing General Partner 2
3 Grant of Authority to the Dealer-Manager ................................. 3
4 Compensation and Fees .................................................... 3
5 Covenants of the Managing General Partner ................................ 5
6 Representations and Warranties of the Dealer-Manager ..................... 5
7 State Securities Registration ............................................ 10
8 Expense of Sale .......................................................... 11
9 Conditions of the Dealer-Manager's Duties ................................ 11
10 Conditions of the Managing General Partner's Duties ...................... 11
11 Indemnification .......................................................... 12
12 Representations and Agreements to Survive Delivery ....................... 12
13 Termination .............................................................. 13
14 Notices .................................................................. 13
15 Format of Checks/Escrow Agent ............................................ 13
16 Transmittal Procedures ................................................... 14
17 Parties .................................................................. 15
18 Relationship ............................................................. 15
19 Effective Date ........................................................... 15
20 Entire Agreement, Waiver ................................................. 15
21 Complaints ............................................................... 15
22 Privacy .................................................................. 15
23. Anti-Money Laundering Provisions.......................................... 16
Exhibit A - Form of Escrow Agreement for Atlas America Public #12-2003 Program
Exhibit B - Selling Agent Agreement
Anthem Securities, Inc.
Dealer-ManagerAgreement
i
ANTHEM SECURITIES, INC.
DEALER-MANAGER AGREEMENT
(Best Efforts)
RE: ATLAS AMERICA PUBLIC #12-2003 PROGRAM
Anthem Securities, Inc.
X.X. Xxx 000
Xxxx Xxxxxxxx, Xxxxxxxxxxxx 00000-0000
Gentlemen:
The undersigned, Atlas Resources, Inc., which is referred to as the
"Managing General Partner," on behalf of Atlas America Public #12-2003 Program,
which is referred to as the "Program," is a series of up to three limited
partnerships to be organized under the laws of Delaware as described below.
These limited partnerships are sometimes referred to in this Agreement in the
singular as a "Partnership" or in the plural as "Partnerships." The Managing
General Partner on behalf of the Partnerships hereby confirms its agreement with
you, as Dealer-Manager, as follows:
1. Description of Program and Units.
(a) The Managing General Partner, a Pennsylvania corporation,
proposes to be the sole managing general partner of up to
three limited partnerships to be formed under the Delaware
Revised Uniform Limited Partnership Act. The Partnerships will
be named as follows:
(i) Atlas America Public #12-2003 Limited Partnership;
(ii) Atlas America Public #12-2004(A) Limited Partnership;
and
(iii) Atlas America Public #12-2004(B) Limited Partnership.
On behalf of the Program and the Partnerships, a Registration
Statement on Form S-1 (Registration No. 333-105811) relating
to the offer and sale of the limited partner and investor
general partner interests in the Partnerships, which are
referred to as the "Units," was filed on June 4, 2003 with the
Securities and Exchange Commission (the "Commission") under
the Securities Act of 1933, which is referred to as the "Act."
The Registration Statement has been declared effective by the
Commission and the Partnerships and the Units are described in
the Prospectus (the "Prospectus") that forms a part of the
Registration Statement. As used in this Agreement, the terms
"Prospectus" and "Registration Statement" refer solely to the
Prospectus and Registration Statement, as amended, described
above, except that:
(i) from and after the date on which any post-effective
amendment to the Registration Statement is declared
effective by the Commission, the term "Registration
Statement" shall refer to the Registration Statement
as amended by that post-effective amendment, and the
term "Prospectus" shall refer to the Prospectus then
forming a part of the Registration Statement; and
Anthem Securities, Inc. 1
Dealer-Manager Agreement
(ii) if the Prospectus filed by the Managing General
Partner pursuant to Rule 424(b) or (c) promulgated by
the Commission under the Act differs from the
Prospectus on file with the Commission at the time
the Registration Statement or any post-effective
amendment thereto shall have become effective, the
term "Prospectus" shall refer to the Prospectus filed
pursuant thereto from and after the date on which it
was filed.
Terms defined in the Prospectus and not otherwise defined in
this Agreement shall have the meanings set forth in the
Prospectus.
(b) The Units will be sold at a price of $10,000 per Unit subject
to the discounts set forth in Section 4(c) of this Agreement
for certain investors. Subject to the receipt and acceptance
by the Managing General Partner of the minimum subscription
proceeds of $1,000,000 in a Partnership by its Offering
Termination Date for each Partnership as described in the
Prospectus (the "Offering Termination Date"), the Managing
General Partner may break escrow and use the subscription
proceeds for the Partnership's drilling activities, which is
referred to as the "Initial Closing Date." The subscription
period for each Partnership will be as described in the
Prospectus. However, the offering of Atlas America Public
#12-2003 Limited Partnership may not extend beyond December
31, 2003, the offering of Atlas America Public #12-2004(A)
Limited Partnership may not extend beyond July 30, 2004, and
the offering of Atlas America Public #12-2004(B) Limited
Partnership may not extend beyond December 31, 2004. Also, the
maximum subscriptions of all the Partnerships, in the
aggregate, must not exceed the registered amount of $75
million.
The Managing General Partner will notify you and the "Selling Agents,"
as defined below, of the Initial Closing Date and Offering Termination
Date for each Partnership.
2. Representations, Warranties and Agreements of the Managing General
Partner. The Managing General Partner represents and warrants to and
agrees with you that:
(a) The Partnerships composing the Program have a currently
effective Registration Statement on Form S-1, including a
final Prospectus, for the registration of the Units under the
Act as described in Section 1 of this Agreement.
(b) The Managing General Partner shall provide to you for delivery
to all offerees and purchasers and their representatives the
information and documents that the Managing General Partner
deems appropriate to comply with the Act and applicable state
securities acts, which are referred to as the "Blue Sky" laws.
(c) The Units when issued will be duly authorized and validly
issued as set forth in the Agreement of Limited Partnership of
each Partnership, which is referred to as the "Partnership
Agreement," the form of which is included as Exhibit (A) to
the Prospectus, and subject only to the rights and obligations
set forth in the Partnership Agreement or imposed by the laws
of the state of formation of each Partnership or of any
jurisdiction to the laws of which each Partnership is subject.
(d) Each Partnership will be duly formed under the laws of the
State of Delaware and once formed will be validly existing as
a limited partnership in good standing under the laws of
Delaware with full power and authority to own its properties
and conduct its business as described in the Prospectus.
Anthem Securities, Inc. 2
Dealer-Manager Agreement
Each Partnership will be qualified to do business as a limited
partnership or similar entity offering limited liability in
those jurisdictions where the Managing General Partner deems
the qualification necessary to assure limited liability of the
limited partners.
(e) The Prospectus, as supplemented or amended, does not contain
an untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements in the
Prospectus, in the light of the circumstances under which they
are made, not misleading.
3. Grant of Authority to the Dealer-Manager.
(a) Based on the representations and warranties contained in this
Agreement, and subject to the terms and conditions set forth
in this Agreement, the Managing General Partner appoints you
as the Dealer-Manager for the Partnerships and gives you the
exclusive right to solicit subscriptions for the Units on a
"best efforts" basis in all states other than:
(i) Minnesota; and
(ii) New Hampshire
during the offering period as described in the Prospectus.
(b) In all states other than Minnesota and New Hampshire you agree
to use your best efforts to effect sales of the Units and to
form and manage a selling group composed of soliciting
broker/dealers, which are referred to as the "Selling Agents,"
each of which shall be a member of the National Association of
Securities Dealers, Inc., which is referred to as the "NASD,"
and shall enter into a "Selling Agent Agreement" in
substantially the form attached to this Agreement as Exhibit
"B."
The Managing General Partner shall have three business days after the
receipt of an executed Selling Agent Agreement to refuse that Selling
Agent's participation.
4. Compensation and Fees.
(a) As Dealer-Manager you shall receive from the Managing General
Partner the following compensation, based on each Unit sold to
investors in a Partnership who are situated and/or residents
in states other than Minnesota and New Hampshire and whose
subscriptions for Units are accepted by the Managing General
Partner:
(i) a 2.5% Dealer-Manager fee;
(ii) a 7% Sales Commission;
(iii) a .5% accountable marketing expense fee; and
(iv) a .5% reimbursement of the Selling Agents' bona fide
accountable due diligence expenses.
(b) All of the .5% reimbursement of the Selling Agents' bona fide
accountable due diligence expenses shall be reallowed to the
Selling Agents, and all or a portion of the 7% Sales
Commission and .5% accountable marketing expense fee shall be
reallowed to the Selling Agents as described in the Selling
Agent Agreement with each Selling Agent. Most, if not all, of
the 2.5% Dealer-Manager fee shall be reallowed to the
wholesalers for subscriptions obtained through their efforts
less any reimbursements for expenses which are received by
Anthem Securities, Inc. 3
Dealer-Manager Agreement
the wholesaler in connection with the Program. You shall
retain any of the 7% Sales Commission and .5% accountable
marketing expense fee not reallowed to the Selling Agents and
any of the 2.5% Dealer-Manager fee not reallowed to the
wholesalers.
(c) Notwithstanding the foregoing:
(i) the Managing General Partner, its officers,
directors, and affiliates, and investors who buy
Units through the officers and directors of the
Managing General Partner may subscribe to Units for a
subscription price reduced by the 2.5% Dealer-Manager
fee, the 7% Sales Commission, the .5% accountable
marketing expense fee, and the .5% reimbursement of
the Selling Agents' bona fide accountable due
diligence expenses which shall not be paid to you;
and
(ii) registered investment advisors and their clients and
Selling Agents and their registered representatives
and principals may subscribe to Units for a
subscription price reduced by the 7% Sales
Commission, which shall not be paid to you, although
their subscription price shall not be reduced by the
2.5% Dealer-Manager fee, the .5% accountable
marketing expense fee, and the .5% reimbursement of
the Selling Agents' bona fide accountable due
diligence expenses which shall be paid to you.
No more than 5% of the total Units sold in the Partnerships
shall be sold, in the aggregate, with the discounts described
above.
(d) Pending receipt and acceptance by the Managing General Partner
of the minimum subscription proceeds of $1,000,000 in each
Partnership, excluding:
(i) any optional subscription of the Managing General
Partner and its Affiliates; and
(ii) the subscription discounts set forth in Section 4(c)
of this Agreement;
all proceeds received by you from the sale of Units in each
Partnership shall be held in a separate interest bearing
escrow account as provided in Section 15 of this Agreement.
Unless at least the minimum subscription proceeds of
$1,000,000 as described above are received on or before the
Offering Termination Date of a Partnership as described in
Section 1 of this Agreement, the offering of Units in that
Partnership shall be terminated, in which event:
(i) the 2.5% Dealer-Manager fee, the 7% Sales Commission,
the .5% accountable marketing expense fee, and the
.5% reimbursement of the Selling Agents' bona fide
accountable due diligence expenses set forth in
Section 4(a) of this Agreement shall not be payable
to you;
(ii) all funds advanced by subscribers shall be returned
to them with interest earned; and
(iii) you shall deliver a termination letter in the form
provided to you by the Managing General Partner to
each of the subscribers and to each of the offerees
previously solicited by you and the Selling Agents in
connection with the offering of the Units.
Anthem Securities, Inc. 4
Dealer-Manager Agreement
(e) Except as otherwise provided below, the fees, reimbursements,
and Sales Commissions set forth in Section 4(a) of this
Agreement shall be paid to you within five business days after
the following:
(i) at least the minimum subscription proceeds of
$1,000,000 as described above have been received by
the respective Partnership and accepted by the
Managing General Partner; and
(ii) the Partnership's subscription proceeds have been
released from the escrow account to the Managing
General Partner.
You shall reallow to the Selling Agents and the wholesalers
their respective fees, reimbursements, and Sales Commissions
as set forth in Section 4(b) of this Agreement.
Thereafter, your fees, reimbursements, and Sales Commissions
shall be paid to you and shall be reallowed to the Selling
Agents and wholesalers as described above approximately every
two weeks until the Offering Termination Date for the
respective Partnership. All your remaining fees,
reimbursements, and Sales Commissions shall be paid by the
Managing General Partner no later than fourteen business days
after the Offering Termination Date for the respective
Partnership.
5. Covenants of the Managing General Partner. The Managing General Partner
covenants and agrees that:
(a) The Managing General Partner shall deliver to you ample copies
of the Prospectus and all amendments or supplements to the
Prospectus.
(b) If any event affecting a Partnership or the Managing General
Partner occurs that in the opinion of the Managing General
Partner should be set forth in a supplement or amendment to
the Prospectus, then the Managing General Partner shall
promptly at its expense prepare and furnish to you a
sufficient number of copies of a supplement or amendment to
the Prospectus so that it, as so supplemented or amended, will
not contain an untrue statement of a material fact or omit to
state any material fact necessary in order to make the
statements in the Prospectus, in the light of the
circumstances under which they are made, not misleading.
6. Representations and Warranties of the Dealer-Manager. You, as the
Dealer-Manager, represent and warrant to the Managing General Partner
that:
(a) You are a corporation duly organized, validly existing and in
good standing under the laws of the state of your formation or
of any jurisdiction to the laws of which you are subject, with
all requisite power and authority to enter into this Agreement
and to carry out your obligations under this Agreement.
(b) This Agreement when accepted and approved shall be duly
authorized, executed, and delivered by you and shall be a
valid and binding agreement on your part in accordance with
its terms.
(c) The consummation of the transactions contemplated by this
Agreement and the Prospectus shall not result in the
following:
Anthem Securities, Inc. 5
Dealer-Manager Agreement
(i) any breach of any of the terms or conditions of, or a
default under your Articles of Incorporation or
Bylaws, or any other indenture, agreement, or other
instrument to which you are a party; or
(ii) any violation of any order applicable to you of any
court or any federal or state regulatory body or
administrative agency having jurisdiction over you or
your affiliates.
(d) You are duly registered under the provisions of the Securities
Exchange Act of 1934, which is referred to as the "Act of
1934," as a dealer, and you are a member in good standing of
the NASD. You are duly registered as a broker/dealer in the
states where you are required to be registered in order to
carry out your obligations as contemplated by this Agreement
and the Prospectus. You agree to maintain all the foregoing
registrations in good standing throughout the term of the
offer and sale of the Units in each Partnership, and you agree
to comply with all statutes and other requirements applicable
to you as a broker/dealer under those registrations.
(e) Pursuant to your appointment as Dealer-Manager, you shall use
your best efforts to exercise the supervision and control that
you deem necessary and appropriate to the activities of you
and the Selling Agents to comply with all the provisions of
the Act, insofar as the Act applies to your and their
activities under this Agreement. Further, you and the Selling
Agents shall not engage in any activity which would cause the
offer and/or sale of the Units not to comply with the Act, the
Act of 1934, the applicable rules and regulations of the
Commission, the applicable state securities laws and
regulations, this Agreement, and the NASD Conduct Rules
including Rules 2420, 2730, 2740, 2750, and Rule 2810(b)(2)
and (b)(3), which provide as follows:
Sec. (b)(2)
Suitability
(A) A member or person associated with a member
shall not underwrite or participate in a
public offering of a direct participation
program unless standards of suitability have
been established by the program for
participants therein and such standards are
fully disclosed in the prospectus and are
consistent with the provisions of
subparagraph (B) of this section.
(B) In recommending to a participant the
purchase, sale or exchange of an interest in
a direct participation program, a member or
person associated with a member shall:
(i) have reasonable grounds to believe,
on the basis of information obtained
from the participant concerning his
investment objectives, other
investments, financial situation and
needs, and any other information
known by the member or associated
person, that:
(a) the participant is or will
be in a financial position
appropriate to enable him
to realize to a significant
extent the benefits
described in the
Anthem Securities, Inc. 6
Dealer-Manager Agreement
prospectus, including the
tax benefits where they are
a significant aspect of the
program;
(b) the participant has a fair
market net worth sufficient
to sustain the risks
inherent in the program,
including loss of
investment and lack of
liquidity; and
(c) the program is otherwise
suitable for the
participant; and
(ii) maintain in the files of the member
documents disclosing the basis upon
which the determination of
suitability was reached as to each
participant.
(C) Notwithstanding the provisions of
subparagraphs (A) and (B) hereof, no member
shall execute any transaction in a direct
participation program in a discretionary
account without prior written approval of
the transaction by the customer.
Sec. (b)(3)
Disclosure
(A) Prior to participating in a public offering
of a direct participation program, a member
or person associated with a member shall
have reasonable grounds to believe, based on
information made available to him by the
sponsor through a prospectus or other
materials, that all material facts are
adequately and accurately disclosed and
provide a basis for evaluating the program.
(B) In determining the adequacy of disclosed
facts pursuant to subparagraph (A) hereof, a
member or person associated with a member
shall obtain information on material facts
relating at a minimum to the following, if
relevant in view of the nature of the
program:
(i) items of compensation;
(ii) physical properties;
(iii) tax aspects;
(iv) financial stability and experience
of the sponsor;
(v) the program's conflicts and risk
factors; and
(vi) appraisals and other pertinent
reports.
(C) For purposes of subparagraphs (A) and (B)
hereof, a member or person associated with a
member may rely upon the results of an
inquiry conducted by another member or
members, provided that:
Anthem Securities, Inc. 7
Dealer-Manager Agreement
(i) the member or person associated with
a member has reasonable grounds to
believe that such inquiry was
conducted with due care;
(ii) the results of the inquiry were
provided to the member or person
associated with a member with the
consent of the member or members
conducting or directing the inquiry;
and
(iii) no member that participated in the
inquiry is a sponsor of the program
or an affiliate of such sponsor.
(D) Prior to executing a purchase transaction in
a direct participation program, a member or
person associated with a member shall inform
the prospective participant of all pertinent
facts relating to the liquidity and
marketability of the program during the term
of investment.
(f) You agree to advise the Managing General Partner in writing of
each state in which you and the Selling Agents propose to
offer or sell the Units; and you shall not nor shall you
permit any Selling Agent to offer or sell the Units in any
state until you have been advised in writing by the Managing
General Partner, or the Managing General Partner's special
counsel, that the offer or sale of the Units:
(i) has been qualified in the state;
(ii) is exempt from the qualification requirements imposed
by the state; or
(iii) the qualification is otherwise not required.
(g) You and the Selling Agents have received copies of the
Prospectus relating to the Units and you and the Selling
Agents have relied only on the statements contained in the
Prospectus and not on any other statements whatsoever, either
written or oral, with respect to the details of the offering
of Units.
You agree and shall require any Selling Agent to agree to
deliver a copy of the Prospectus to each subscriber to whom
you sell the Units at or before the completion of any sale of
Units to such subscriber (which sale shall be deemed, for the
purposes of this Agreement to occur on the date on which that
subscriber delivers subscription funds to the escrow agent),
or earlier if required by the Blue Sky or securities laws of
any state. Unless advised otherwise by the Managing General
Partner, you and the Selling Agents may choose to provide each
offeree with the following, which are collectively referred to
as the "Sales Literature":
(i) a flyer entitled "Atlas America Public #12-2003
Program";
(ii) an article entitled "Tax Rewards with Oil and Gas
Partnerships";
(iii) a brochure of tax scenarios entitled "How an
Investment in Atlas America Public #12-2003 Program
Can Help Achieve an Investor's Tax Objectives";
(iv) a brochure entitled "Investing in Atlas America
Public #12-2003 Program";
Anthem Securities, Inc. 8
Dealer-Manager Agreement
(v) a booklet entitled "Outline of Tax Consequences of
Oil and Gas Drilling Programs";
(vi) a brochure entitled "The Appalachian Basin: A Prime
Drilling Location Which Commands a Premium";
(vii) a brochure entitled "Investment Insights - Tax Time";
(viii) a brochure entitled "Frequently Asked Questions"; and
(ix) possibly other supplementary materials.
Any such Sales Literature, if distributed, must have been
preceded or must be accompanied by the Prospectus.
(h) You and the Selling Agents agree that you and the Selling
Agents shall not place any advertisement or other solicitation
with respect to the Units (including without limitation any
material for use in any newspaper, magazine, radio or
television commercial, telephone recording, motion picture, or
other public media) without:
(i) the prior written approval of the Managing General
Partner; and
(ii) the prior written approval of the form and content
thereof by the Commission, the NASD and the
securities authorities of the states where such
advertisement or solicitation is to be circulated.
Any such advertisements or solicitations shall be at your
expense.
(i) If a supplement or amendment to the Prospectus is
prepared and delivered to you by the Managing General
Partner, you agree and shall require any Selling
Agent to agree as follows:
(i) to distribute each supplement or amendment to the
Prospectus to every person who has previously
received a copy of the Prospectus from you and/or the
Selling Agent; and
(ii) to include each supplement or amendment in all future
deliveries of any Prospectus.
(j) In connection with any offer or sale of the Units, you agree
and shall require any Selling Agent to agree to the following:
(i) to comply in all respects with statements set forth
in the Prospectus, the Partnership Agreement, and any
supplements or amendments to the Prospectus;
(ii) not to make any statement inconsistent with the
statements in the Prospectus, the Partnership
Agreement, and any supplements or amendments to the
Prospectus;
(iii) not to make any untrue or misleading statements of a
material fact in connection with the Units; and
Anthem Securities, Inc. 9
Dealer-Manager Agreement
(iv) not to provide any written information, statements,
or sales materials other than the Prospectus, the
Sales Literature, and any supplements or amendments
to the Prospectus unless approved in writing by the
Managing General Partner.
(k) You agree to use your best efforts in the solicitation and
sale of the Units and to coordinate and supervise the efforts
of the Selling Agents, and you shall require any Selling Agent
to agree to use its best efforts in the solicitation and sale
of the Units, including that:
(i) the prospective purchasers meet the suitability
requirements set forth in the Prospectus, the
Subscription Agreement, and this Agreement; and
(ii) the prospective purchasers properly complete and
execute the Subscription Agreement, which has been
provided as Exhibit (I-B) to the Partnership
Agreement, Exhibit (A) of the Prospectus, together
with any additional forms provided in any supplement
or amendment to the Prospectus, or otherwise provided
to you by the Managing General Partner to be
completed by prospective purchasers.
The Managing General Partner shall have the right to reject
any subscription at any time for any reason without liability
to it. Subscription funds and executed Subscription Agreements
shall be transmitted as set forth in Section 16 of this
Agreement.
(l) Although not anticipated, if you assist in any transfers of
the Units, then you shall comply, and you shall require any
Selling Agent to comply, with the requirements of Rule
2810(b)(2)(B) and (b)(3)(D) of the NASD Conduct Rules.
(m) You agree and covenant that:
(i) the representations and warranties you make in this
Agreement are and shall be true and correct at the
applicable closing date; and
(ii) you shall have fulfilled all your obligations under
this Agreement at the applicable closing date.
7. State Securities Registration. Incident to the offer and sale of the
Units, the Managing General Partner shall use its best efforts either
in taking:
(a) all necessary action and filing all necessary forms and
documents deemed reasonable by it in order to qualify or
register Units for sale under the securities laws of the
states requested by you pursuant to Section 6(f) of this
Agreement; or
(b) any necessary action and filing any necessary forms deemed
reasonable by it in order to obtain an exemption from
qualification or registration in those states.
Notwithstanding, the Managing General Partner may elect not to qualify
or register Units in any state or jurisdiction in which it deems the
qualification or registration is not warranted for any reason in its
sole discretion. The Managing General Partner and its counsel shall
inform you as to the states and jurisdictions in which the Units have
been qualified for sale or are exempt under the respective securities
or Blue Sky laws of those states and jurisdictions. The Managing
General Partner, however, has not assumed and will not assume any
obligation or responsibility as to your
Anthem Securities, Inc. 10
Dealer-Manager Agreement
right or any Selling Agent's right to act as a broker/dealer with
respect to the Units in any state or jurisdiction.
The Managing General Partner shall provide to you and the Selling
Agents for delivery to all offerees and purchasers and their
representatives any additional information, documents, and instruments
that the Managing General Partner deems necessary to comply with the
rules, regulations, and judicial and administrative interpretations in
those states and jurisdictions for the offer and sale of the Units in
these states.
The Managing General Partner shall file all post-offering forms,
documents, or materials and take all other actions required by the
states and jurisdictions in which the offer and sale of Units have been
qualified, registered, or are exempt. However, the Managing General
Partner shall not be required to take any action, make any filing, or
prepare any document necessary or required in connection with your
status or any Selling Agent's status as a broker/dealer under the laws
of any state or jurisdiction.
The Managing General Partner shall provide you with copies of all
applications, filings, correspondence, orders, other documents, or
instruments relating to any application for qualification,
registration, exemption, or other approval under applicable state or
Federal securities laws for the offering.
8. Expense of Sale. The expenses in connection with the offer and sale of
the Units shall be payable as set forth below.
(a) The Managing General Partner shall pay all expenses incident
to the performance of its obligations under this Agreement,
including the fees and expenses of its attorneys and
accountants and all fees and expenses of registering or
qualifying the Units for offer and sale in the states and
jurisdictions as set forth in Section 7 of this Agreement, or
obtaining exemptions from qualification or registration, even
if the offering of the Partnerships is not successfully
completed.
(b) You shall pay all expenses incident to the performance of your
obligations under this Agreement, including the formation and
management of the selling group and the fees and expenses of
your own counsel and accountants, even if the offering of the
Partnerships is not successfully completed.
9. Conditions of the Dealer-Manager's Duties. Your obligations under this
Agreement shall be subject to the accuracy, as of the date of this
Agreement and at the applicable closing date of:
(a) the Managing General Partner's representations and warranties
made in this Agreement; and
(b) to the performance by the Managing General Partner of its
obligations under this Agreement.
10. Conditions of the Managing General Partner's Duties. The Managing
General Partner's obligations provided under this Agreement, including
the duty to pay compensation to you as set forth in Section 4 of this
Agreement, shall be subject to the following:
(a) the accuracy, as of the date of this Agreement and at the
applicable closing date of each Partnership as if made at the
applicable closing date, of your representations and
warranties made in this Agreement;
Anthem Securities, Inc. 11
Dealer-Manager 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.
(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:
Anthem Securities, Inc. 12
Dealer-Manager Agreement
(a) survive the delivery, execution and closing of this Agreement;
and
(b) remain operative and in full force and effect regardless of
any investigation made by or on behalf of you or any person
who controls you within the meaning of the Act, by the
Managing General Partner, or any of its officers, directors,
or any person who controls the Managing General Partner within
the meaning of the Act, or any other indemnified party; and
(c) survive delivery of the Units.
13. Termination.
(a) You shall have the right to terminate this Agreement other
than the indemnification provisions of Section 11 of this
Agreement by giving notice as specified below any time at or
before a closing date:
(i) if the Managing General Partner has failed, refused,
or been unable at or before a closing date, to
perform any of its obligations under this Agreement;
or
(ii) there has occurred an event materially and adversely
affecting the value of the Units.
If you elect to terminate this Agreement other than the indemnification
provisions of Section 11 of this Agreement, then the Managing General
Partner shall be promptly notified by you by telephone, e-mail,
facsimile, or telegram, confirmed by letter.
(b) The Managing General Partner may terminate this Agreement
other than the indemnification provisions of Section 11 of
this Agreement, for any reason and at any time, by promptly
giving notice to you by telephone, e-mail, facsimile, or
telegram, confirmed by letter as specified below at or before
a closing date.
14. Notices.
(a) All notices or communications under this Agreement, except as
otherwise specifically provided, shall be in writing.
(b) Any notice or communication sent by the Managing General
Partner to you shall be mailed, delivered, or sent by
facsimile, e-mail or telegraph, and confirmed to you at X.X.
Xxx 000, 000 Xxxxxx Xxxx, Xxxx Xxxxxxxx, Xxxxxxxxxxxx
00000-0000.
(c) Any notice or communication sent by you to the Managing
General Partner or a Partnership shall be mailed, delivered,
or sent by facsimile, e-mail or telegraph, and confirmed at
000 Xxxxxx Xxxx, Xxxx Xxxxxxxx, Xxxxxxxxxxxx 00000.
15. Format of Checks/Escrow Agent. Pending receipt of the minimum
subscription proceeds of $1,000,000 of each Partnership as set forth in
Section 4(d) of this Agreement, the Managing General Partner and you
and the Selling Agents, including customer carrying broker/dealers,
agree that all subscribers shall be instructed to make their checks or
wires payable solely to the Escrow Agent for the Partnership in which
the Units are then being offered as follows:
(a) "Atlas Public #12-2003 Limited Partnership, Escrow Agent,
National City Bank of PA";
Anthem Securities, Inc. 13
Dealer-Manager Agreement
(b) "Atlas Public #12-2004(A) Limited Partnership, Escrow Agent,
National City Bank of PA"; or
(c) "Atlas Public #12-2004(B) Limited Partnership, Escrow Agent,
National City Bank of PA";
as agent for the respective Partnership then being offered, and you
agree and shall require the Selling Agents, including customer carrying
broker/dealers, to agree to comply with Rule 15c2-4 adopted under the
Act of 1934. In addition, for identification purposes, wire transfers
should reference the subscriber's name and the account number of the
escrow account for the Partnership in which the Units are then being
offered.
If you receive a check not conforming to the foregoing instructions,
then you shall return the check to the Selling Agent not later than the
end of the next business day following its receipt by you. The Selling
Agent shall then return the check directly to the subscriber not later
than the end of the next business day following its receipt from you.
Checks received by you or a Selling Agent which conform to the
foregoing instructions shall be transmitted by you under Section 16
"Transmittal Procedures," below.
You represent that you have or will execute the Escrow Agreement for
each Partnership and agree that you are bound by the terms of the
Escrow Agreement executed by you, for the respective Partnership, and
the Managing General Partner, forms of which are attached to this
Agreement as Exhibits "A-1" through "A-3."
16. Transmittal Procedures. You and each Selling Agent, including customer
carrying broker/dealers, shall transmit received investor funds in
accordance with the following procedures. For purposes of the
following, the term "Selling Agent" shall also include you as
Dealer-Manager when you receive subscriptions from investors.
(a) Pending receipt of a Partnership's minimum subscription
proceeds of $1,000,000 as set forth in Section 4(d) of this
Agreement, the Selling Agents on receipt of any check from a
subscriber shall promptly transmit the check and the original
executed Subscription Agreement to you, as Dealer-Manager, by
the end of the next business day following receipt of the
check by the Selling Agent. By the end of the next business
day following your receipt of the check and the original
executed Subscription Agreement, you, as Dealer-Manager, shall
transmit the check and a copy of the executed Subscription
Agreement to the Escrow Agent, and the original executed
Subscription Agreement and a copy of the check to the Managing
General Partner.
(b) On receipt by you, as Dealer-Manager, of notice from the
Managing General Partner that a Partnership's minimum
subscription proceeds of $1,000,000 as set forth in Section
4(d) of this Agreement have been received, the Managing
General Partner, you, and the Selling Agents agree that all
subscribers then may be instructed, in the Managing General
Partner's sole discretion, to make their checks or wires
payable solely to the Partnership in which Units are then
being offered.
Thereafter, the Selling Agents shall promptly transmit any and
all checks received from subscribers and the original executed
Subscription Agreement to you, as Dealer-Manager, by the end
of the next business day following receipt of the check by the
Selling Agent. By the end of the next business day following
your receipt of the check and the original executed
Subscription Agreement, you, as Dealer-Manager, shall transmit
the check and the original executed Subscription Agreement to
the Managing General Partner.
Anthem Securities, Inc. 14
Dealer-Manager Agreement
17. Parties. This Agreement shall inure to the benefit of and be binding on
you, the Managing General Partner, and any respective successors and
assigns. This Agreement shall also inure to the benefit of the
indemnified parties, their successors and assigns. This Agreement is
intended to be and is for the sole and exclusive benefit of the parties
to this Agreement, including the Partnerships, and their respective
successors and assigns, and the indemnified parties and their
successors and assigns, and for the benefit of no other person. No
other person shall have any legal or equitable right, remedy or claim
under or in respect of this Agreement. No purchaser of any of the Units
from you or a Selling Agent shall be construed a successor or assign
merely by reason of the purchase.
18. Relationship. This Agreement shall not constitute you a partner of the
Managing General Partner, a Partnership, or any general partner of a
Partnership, nor render the Managing General Partner, the Partnerships,
or any general partner of a Partnership liable for any of your
obligations.
19. Effective Date. This Agreement is made effective between the parties as
of the date accepted by you as indicated by your signature to this
Agreement.
20. Entire Agreement, Waiver.
(a) This Agreement constitutes the entire agreement between the
Managing General Partner and you, and shall not be amended or
modified in any way except by subsequent agreement executed in
writing. Neither party to this Agreement shall be liable or
bound to the other by any agreement except as specifically set
forth in this Agreement.
(b) The Managing General Partner and you may waive, but only in
writing, any term, condition, or requirement under this
Agreement that is intended for its benefit. However, any
written waiver of any term or condition of this Agreement
shall not operate as a waiver of any other breach of that term
or condition of this Agreement. Also, any failure to enforce
any provision of this Agreement shall not operate as a waiver
of that provision or any other provision of this Agreement.
21. Complaints. The Managing General Partner and you, as Dealer-Manager,
agree as follows:
(a) to notify the other if either receives an investor complaint
in connection with the offer or sale of Units by you or a
Selling Agent;
(b) to cooperate with the other in resolving the complaint; and
(c) to cooperate in any regulatory examination of the other to the
extent it involves this Agreement or the offer or sale of
Units by you or a Selling Agent.
22. Privacy. The Managing General Partner and you each acknowledge that
certain information made available to the other under this Agreement
may be deemed nonpublic personal information under the
Xxxxx-Xxxxx-Xxxxxx Act, other federal or state privacy laws (as
amended), and the rules and regulations promulgated thereunder, which
are referred to collectively, as the "Privacy Laws." The Managing
General Partner and you agree as follows:
(a) not to disclose or use the information except as required to
carry out each party's respective duties under this Agreement
or as otherwise permitted by law in the ordinary course of
business;
Anthem Securities, Inc. 15
Dealer-Manager Agreement
(b) to establish and maintain procedures reasonably designated to
assure the security and privacy of all the information; and
(c) to cooperate with the other and provide reasonable assistance
in ensuring compliance with the Privacy Laws to the extent
applicable to either or both the Managing General Partner and
you.
23. Anti-Money Laundering Provision. You and each Selling Agent each
represent and warrant to the Managing General Partner that each of you
have in place and will maintain suitable and adequate "know your
customer" policies and procedures and that each of you shall comply
with all applicable laws and regulations regarding anti-money
laundering activity and will provide such documentation to the Managing
General Partner on written request.
Very truly yours,
MANAGING GENERAL PARTNER
ATLAS RESOURCES, INC.,
a Pennsylvania corporation
, 2003 By:
----------------- ----------------------------------------
Date Xxxx X. Xxxxxxxxx, Senior Vice President
- Direct Participation Programs
PROGRAM
ATLAS AMERICA PUBLIC #12-2003 PROGRAM
By: Atlas Resources, Inc.,
Managing General Partner
, 2003 By:
----------------- ----------------------------------------
Date Xxxx X. Xxxxxxxxx, Senior Vice President
- Direct Participation Programs
DEALER-MANAGER
ANTHEM SECURITIES, INC.,
a Pennsylvania corporation
, 2003 By:
----------------- ----------------------------------------
Date Xxxxxx Xxxxxxxx, Vice President
Anthem Securities, Inc. 16
Dealer-Manager Agreement
EXHIBIT "X-0"
XXXXX XXXXXXX XXXXXX #00-0000 LIMITED PARTNERSHIP
ESCROW AGREEMENT
THIS AGREEMENT is made to be effective as of ________________, by and
among Atlas Resources, Inc., a Pennsylvania corporation (the "Managing General
Partner"), Anthem Securities, Inc., a Pennsylvania corporation ("Anthem"), Xxxxx
Funding, Inc., a Pennsylvania corporation ("Xxxxx Funding"), collectively Anthem
and Xxxxx Funding are referred to as the "Dealer-Manager," Atlas America Public
#12-2003 Limited Partnership, a Delaware limited partnership (the "Partnership")
and National City Bank of Pennsylvania, Pittsburgh, Pennsylvania, as escrow
agent (the "Escrow Agent").
WITNESSETH:
WHEREAS, the Managing General Partner intends to offer publicly for
sale to qualified investors (the "Investors") up to 7,500 limited and investor
general partner interests in the Partnership (the "Units").
WHEREAS, each Investor will be required to pay his subscription in full
on subscribing by check or wire (the "Subscription Proceeds").
WHEREAS, the cost per Unit will be $10,000 subject to certain discounts
of up to10.5% ($1,050 per Unit) for sales to the Managing General Partner, its
officers, directors and affiliates, registered investment advisors and their
clients, Selling Agents and their registered representatives and principals, and
investors who buy Units through the officers and directors of the Managing
General Partner. Also, the Managing General Partner, in its discretion, may
accept one-half Unit ($5,000) subscriptions, with larger subscriptions permitted
in $1,000 increments.
WHEREAS, the Managing General Partner and Anthem have executed an
agreement ("Anthem Dealer-Manager Agreement") under which Anthem will solicit
subscriptions for Units in all states other than Minnesota and New Hampshire on
a "best efforts" "all or none" basis for Subscription Proceeds of $1,000,000 and
on a "best efforts" basis for the remaining Units on behalf of the Managing
General Partner and the Partnership and under which Anthem has been authorized
to select certain members in good standing of the National Association of
Securities Dealers, Inc. ("NASD") to participate in the offering of the Units
("Selling Agents").
WHEREAS, the Managing General Partner and Xxxxx Funding have executed
an agreement ("Xxxxx Funding Dealer-Manager Agreement") under which Xxxxx
Funding will solicit subscriptions for Units in the states of Minnesota and New
Hampshire on a "best efforts" "all or none" basis for Subscription Proceeds of
$1,000,000 and on a "best efforts" basis for the remaining Units on behalf of
the Managing General Partner and the Partnership and under which Xxxxx Funding
has been authorized to select certain members in good standing of the NASD to
participate in the offering of the Units ("Selling Agents").
WHEREAS, the Anthem Dealer-Manager Agreement and the Xxxxx Funding
Dealer-Manager Agreement, collectively referred to as the "Dealer-Manager
Agreement," provide for compensation to the Dealer-Manager to participate in the
offering of the Units, subject to the discounts set forth above for certain
Investors, which compensation includes, but is not limited to, for each Unit
sold:
o a 2.5% Dealer-Manager fee;
1
o a 7% sales commission;
o a .5% accountable marketing expenses fee; and
o a .5% reimbursement of the Selling Agents' bona fide
accountable due diligence expenses;
all or a portion of which will be reallowed to the Selling Agents and
wholesalers.
WHEREAS, under the terms of the Dealer-Manager Agreement the
Subscription Proceeds are required to be held in escrow subject to the receipt
and acceptance by the Managing General Partner of the minimum Subscription
Proceeds of $1,000,000, excluding any optional subscription by the Managing
General Partner, its officers, directors, and Affiliates.
WHEREAS, the Units may also be offered and sold by the officers and
directors of the Managing General Partner without receiving a sales commission
or other compensation on their sales.
WHEREAS, no subscriptions to the Partnership will be accepted after the
"Offering Termination Date," which is the first to occur of either:
o receipt of the maximum Subscription Proceeds of $75,000,000;
or
o December 31, 2003.
WHEREAS, to facilitate compliance with the terms of the Dealer-Manager
Agreement and Rule 15c2-4 adopted under the Securities Exchange Act of 1934, the
Managing General Partner and the Dealer-Manager desire to have the Subscription
Proceeds deposited with the Escrow Agent and the Escrow Agent agrees to hold the
Subscription Proceeds under the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained in this Agreement, the parties to this Agreement, intending to be
legally bound, agree as follows:
1. Appointment of Escrow Agent. The Managing General Partner, the
Partnership, and the Dealer-Manager appoint the Escrow Agent as the
escrow agent to receive and to hold the Subscription Proceeds deposited
with the Escrow Agent by the Dealer-Manager and the Managing General
Partner under this Agreement, and the Escrow Agent agrees to serve in
this capacity during the term and based on the provisions of this
Agreement.
2. Deposit of Subscription Proceeds. Pending receipt of the minimum
Subscription Proceeds of $1,000,000, the Dealer-Manager and the
Managing General Partner shall deposit the Subscription Proceeds of
each Investor to whom they sell Units with the Escrow Agent and shall
deliver to the Escrow Agent a copy of the "Subscription Agreement,"
which is the execution and subscription instrument signed by the
Investor to evidence his agreement to purchase Units in the
Partnership. Payment for each subscription for Units shall be in the
form of a check or wire made payable to "Atlas America Public #12-2003
Limited Partnership, Escrow Agent, National City Bank of Pennsylvania."
3. Investment of Subscription Proceeds. The Subscription Proceeds shall be
deposited in an interest bearing account maintained by the Escrow Agent
as directed by the Managing General Partner. This may be a savings
account, bank money market account, short-term certificates of deposit
issued by a bank, or short-term certificates issued or guaranteed by
the United States
Escrow Agreement 2
government. The interest earned shall be added to the Subscription
Proceeds and disbursed in accordance with the provisions of Paragraph 4
or 5 of this Agreement, as the case may be.
4. Distribution of Subscription Proceeds. If the Escrow Agent:
(a) receives proper written notice from an authorized officer of
the Managing General Partner that at least the minimum
Subscription Proceeds of $1,000,000 have been received and
accepted by the Managing General Partner; and
(b) determines that Subscription Proceeds for at least $1,000,000
have been deposited, accepted and cleared the banking system
and are good;
then the Escrow Agent shall promptly release and distribute to the
Managing General Partner the escrowed Subscription Proceeds which have
cleared the banking system and are good plus any interest paid and
investment income earned on the Subscription Proceeds while held by the
Escrow Agent in the escrow account.
After the initial distribution, any remaining Subscription Proceeds,
plus any interest paid and investment income earned on the Subscription
Proceeds while held by the Escrow Agent in the escrow account, shall be
promptly released and distributed to the Managing General Partner by
the Escrow Agent as the Subscription Proceeds clear the banking system
after a 10 day period from the date of deposit.
5. Separate Partnership Account. During the continuation of the offering
after the Partnership is funded with cleared Subscription Proceeds of
at least $1,000,000 and the Escrow Agent receives the notice described
in Paragraph 4 of this Agreement, and before the Offering Termination
Date, any additional Subscription Proceeds may be deposited by the
Dealer-Manager and the Managing General Partner directly in a separate
Partnership account which shall not be subject to the terms of this
Agreement.
6. Distributions to Subscribers.
(a) If the Partnership is not funded as contemplated because less
than the minimum Subscription Proceeds of $1,000,000 have been
received and accepted by the Managing General Partner by
twelve (12:00) p.m. (noon), local time, EASTERN STANDARD TIME
on the Offering Termination Date, or for any other reason,
then the Managing General Partner shall notify the Escrow
Agent, and the Escrow Agent promptly shall distribute to each
Investor, for which Escrow Agent has a copy of a Subscription
Agreement, a refund check made payable to the Investor in an
amount equal to the Subscription Proceeds of the Investor,
plus any interest paid or investment income earned on the
Investor's Subscription Proceeds while held by the Escrow
Agent in the escrow account.
(b) If a subscription for Units submitted by an Investor is
rejected by the Managing General Partner for any reason after
the Subscription Proceeds relating to the subscription have
been deposited with the Escrow Agent, then the Managing
General Partner promptly shall notify in writing, the Escrow
Agent of the rejection, and the Escrow Agent shall promptly
distribute to the Investor a refund check made payable to the
Investor, for which Escrow Agent has a copy of a Subscription
Agreement, in an amount equal to the Subscription Proceeds of
the Investor, plus any interest paid or investment income
earned on the Investor's Subscription Proceeds while held by
the Escrow Agent in the escrow account.
Escrow Agreement 3
7. Compensation and Expenses of Escrow Agent. The Managing General Partner
shall be solely responsible for and shall pay the compensation of the
Escrow Agent for its services under this Agreement, as provided in
Appendix 1 to this Agreement and made a part of this Agreement, and the
charges, expenses (including any reasonable attorneys' fees), and other
out-of-pocket expenses incurred by the Escrow Agent in connection with
the administration of the provisions of this Agreement. The Escrow
Agent shall have no lien on the Subscription Proceeds deposited in the
escrow account unless and until the Partnership is funded with cleared
Subscription Proceeds of at least $1,000,000 and the Escrow Agent
receives the proper written notice described in Paragraph 4 of this
Agreement, at which time the Escrow Agent shall have, and is granted, a
prior lien on any property, cash, or assets held under this Agreement,
with respect to its unpaid compensation and nonreimbursed expenses,
superior to the interests of any other persons or entities.
8. Duties of Escrow Agent. The Escrow Agent shall not be obligated to
accept any notice, make any delivery, or take any other action under
this Agreement unless the notice or request or demand for delivery or
other action is in writing and given or made by the Managing General
Partner or an authorized officer of the Managing General Partner. In no
event shall the Escrow Agent be obligated to accept any notice,
request, or demand from anyone other than the Managing General Partner.
9. Liability of Escrow Agent. The Escrow Agent shall not be liable for any
damages, or have any obligations other than the duties prescribed in
this Agreement in carrying out or executing the purposes and intent of
this Agreement. However, nothing in this Agreement shall relieve the
Escrow Agent from liability arising out of its own willful misconduct
or gross negligence. The Escrow Agent's duties and obligations under
this Agreement shall be entirely administrative and not discretionary.
The Escrow Agent shall not be liable to any party to this Agreement or
to any third-party as a result of any action or omission taken or made
by the Escrow Agent in good faith. The parties to this Agreement will
jointly and severally indemnify the Escrow Agent, hold the Escrow Agent
harmless, and reimburse the Escrow Agent from, against and for, any and
all liabilities, costs, fees and expenses (including reasonable
attorney's fees) the Escrow Agent may suffer or incur by reason of its
execution and performance of this Agreement. If any legal questions
arise concerning the Escrow Agent's duties and obligations under this
Agreement, then the Escrow Agent may consult with its counsel and rely
without liability on written opinions given to it by its counsel.
The Escrow Agent shall be protected in acting on any written notice,
request, waiver, consent, authorization, or other paper or document
which the Escrow Agent, in good faith, believes to be genuine and what
it purports to be.
If there is any disagreement between any of the parties to this
Agreement, or between them or any other person, resulting in adverse
claims or demands being made in connection with this Agreement, or if
the Escrow Agent, in good faith, is in doubt as to what action it
should take under this Agreement, then the Escrow Agent may, at its
option, refuse to comply with any claims or demands on it or refuse to
take any other action under this Agreement, so long as the disagreement
continues or the doubt exists. In any such event, the Escrow Agent
shall not be or become liable in any way or to any person for its
failure or refusal to act and the Escrow Agent shall be entitled to
continue to so refrain from acting until the dispute is resolved by the
parties involved.
National City Bank of Pennsylvania is acting solely as the Escrow Agent
and is not a party to, nor has it reviewed or approved any agreement or
matter of background related to this Agreement, other than this
Agreement itself, and has assumed, without investigation, the authority
of the individuals executing this Agreement to be so authorized on
behalf of the party or parties involved.
Escrow Agreement 4
10. Resignation or Removal of Escrow Agent. The Escrow Agent may resign as
such after giving thirty days' prior written notice to the other
parties to this Agreement. Similarly, the Escrow Agent may be removed
and replaced after receiving thirty days' prior written notice from the
other parties to this Agreement. In either event, the duties of the
Escrow Agent shall terminate thirty days after the date of the notice
(or as of an earlier date as may be mutually agreeable); and the Escrow
Agent shall then deliver the balance of the Subscription Proceeds (and
any interest paid or investment income earned thereon while held by the
Escrow Agent in the escrow account) in its possession to a successor
escrow agent appointed by the other parties to this Agreement as
evidenced by a written notice filed with the Escrow Agent.
If the other parties to this Agreement are unable to agree on a
successor escrow agent or fail to appoint a successor escrow agent
before the expiration of thirty days following the date of the notice
of the Escrow Agent's resignation or removal, then the Escrow Agent may
petition any court of competent jurisdiction for the appointment of a
successor escrow agent or other appropriate relief. Any resulting
appointment shall be binding on all of the parties to this Agreement.
On acknowledgment by any successor escrow agent of the receipt of the
then remaining balance of the Subscription Proceeds (and any interest
paid or investment income earned thereon while held by the Escrow Agent
in the escrow account), the Escrow Agent shall be fully released and
relieved of all duties, responsibilities, and obligations under this
Agreement.
11. Termination. This Agreement shall terminate and the Escrow Agent shall
have no further obligation with respect to this Agreement after the
distribution of all Subscription Proceeds (and any interest paid or
investment income earned thereon while held by the Escrow Agent in the
escrow account) as contemplated by this Agreement or on the written
consent of all the parties to this Agreement.
12. Notice. Any notices or instructions, or both, to be given under this
Agreement shall be validly given if set forth in writing and mailed by
certified mail, return receipt requested, or by facsimile with
confirmation of receipt (originals to be followed in the mail), or by a
nationally recognized overnight courier, as follows:
If to the Escrow Agent:
National City Bank
0000 Xxxx 0xx Xxxxxx Xxxxxxxxx, Xxxx 00000
Attention: Xxxx XxXxxxx LOC 2111
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Escrow Agreement 5
If to the Managing General Partner:
Atlas Resources, Inc.
000 Xxxxxx Xxxx
X.X. Xxx 000
Xxxx Xxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx X. Black
Phone: (000) 000-0000
Facsimile: (000) 000-0000
If to Anthem:
Anthem Securities, Inc.
000 Xxxxxx Xxxx
X.X. Xxx 000
Xxxx Xxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
If to Xxxxx Funding:
Xxxxx Funding, Inc.
000 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Xx.
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Any party may designate any other address to which notices and
instructions shall be sent by notice duly given in accordance with this
Agreement.
13. Miscellaneous.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
(b) This Agreement shall be binding on and shall inure to the
benefit of the undersigned and their respective successors and
assigns.
(c) This Agreement may be executed in multiple copies, each
executed copy to serve as an original.
Escrow Agreement 6
14. The parties hereto and subscribers acknowledge Escrow Agent has not
reviewed and is not making any recommendations with respect to the
securities offered.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
be effective as of the day and year first above written.
NATIONAL CITY BANK OF PENNSYLVANIA
As Escrow Agent
By:
------------------------------------------
(Authorized Officer)
ATLAS RESOURCES, INC.
A Pennsylvania corporation
By:
------------------------------------------
Xxxxx X. Black, Vice President -
Partnership Administration
ANTHEM SECURITIES, INC.
A Pennsylvania corporation
By:
------------------------------------------
Xxxxxx X. Xxxxxxxx, Vice President
XXXXX FUNDING, INC.
A Pennsylvania corporation
By:
------------------------------------------
Xxxxxxx X. Xxxxx, Xx., President
ATLAS AMERICA PUBLIC #12-2003 LIMITED
PARTNERSHIP
By: ATLAS RESOURCES, INC.
Managing General Partner
By:
------------------------------------------
Xxxx X. Xxxxxxxxx, Senior Vice President
- Direct Participation Programs
Escrow Agreement 7
APPENDIX I TO ESCROW AGREEMENT
Compensation for Services of Escrow Agent
REVIEW AND ACCEPTANCE FEE: $ waived
For providing initial review of the Escrow Agreement and all supporting
documents and for initial services associated with establishing the Escrow
Account. This is a one (1) time fee payable upon the opening of the account.
I. Annual Administrative Fee Payable in Advance $3000.00
(or any portion thereof)
II. Remittance of checks returned to subscribers 20.00
(set out in section 6 of the governing agreement)
III. Wire transfers n/a
IV. Purchase or Sale of Securities 100.00
V. Investments (document limits investment to a checking or savings
account, or certificates of deposit) such products offered by any
National City Bank retail branch)- fees are subject to the type of
account the Managing General Partner directs the Escrow Agent to open
and to be governed by the Escrow Agreement.
EXTRAORDINARY SERVICES:
For any services other than those covered by the aforementioned, a special per
hour charge will be made commensurate with the character of the service, time
required and responsibility involved. Such services include but are not limited
to excessive administrative time, attendance at closings, specialized reports,
and record keeping, unusual certifications, etc.
Managing General Partner agrees to report all funds in accordance with
appropriate tax treatment.
FEE SCHEDULE IS SUBJECT TO ANNUAL REVIEW AND/OR ADJUSTMENT UPON AMENDMENT
THERETO.
Escrow Agreement 8
EXHIBIT "A-2"
ATLAS AMERICA PUBLIC #00-0000(X) XXXXXXX PARTNERSHIP
ESCROW AGREEMENT
THIS AGREEMENT is made to be effective as of ________________, by and
among Atlas Resources, Inc., a Pennsylvania corporation (the "Managing General
Partner"), Anthem Securities, Inc., a Pennsylvania corporation ("Anthem"), Xxxxx
Funding, Inc., a Pennsylvania corporation ("Xxxxx Funding"), collectively Anthem
and Xxxxx Funding are referred to as the "Dealer-Manager," Atlas America Public
#12-2004(A) Limited Partnership, a Delaware limited partnership to be formed
(the "Partnership") and National City Bank of Pennsylvania, Pittsburgh,
Pennsylvania, as escrow agent (the "Escrow Agent").
WITNESSETH:
WHEREAS, the Managing General Partner intends to offer publicly for
sale to qualified investors (the "Investors") up to ___________ limited and
investor general partner interests in the Partnership (the "Units").
WHEREAS, each Investor will be required to pay his subscription in full
on subscribing by check or wire (the "Subscription Proceeds").
WHEREAS, the cost per Unit will be $10,000 subject to certain discounts
of up to10.5% ($1,050 per Unit) for sales to the Managing General Partner, its
officers, directors and affiliates, registered investment advisors and their
clients, Selling Agents and their registered representatives and principals, and
investors who buy Units through the officers and directors of the Managing
General Partner. Also, the Managing General Partner, in its discretion, may
accept one-half Unit ($5,000) subscriptions, with larger subscriptions permitted
in $1,000 increments.
WHEREAS, the Managing General Partner and Anthem have executed an
agreement ("Anthem Dealer-Manager Agreement") under which Anthem will solicit
subscriptions for Units in all states other than Minnesota and New Hampshire on
a "best efforts" "all or none" basis for Subscription Proceeds of $1,000,000 and
on a "best efforts" basis for the remaining Units on behalf of the Managing
General Partner and the Partnership and under which Anthem has been authorized
to select certain members in good standing of the National Association of
Securities Dealers, Inc. ("NASD") to participate in the offering of the Units
("Selling Agents").
WHEREAS, the Managing General Partner and Xxxxx Funding have executed
an agreement ("Xxxxx Funding Dealer-Manager Agreement") under which Xxxxx
Funding will solicit subscriptions for Units in the states of Minnesota and New
Hampshire on a "best efforts" "all or none" basis for Subscription Proceeds of
$1,000,000 and on a "best efforts" basis for the remaining Units on behalf of
the Managing General Partner and the Partnership and under which Xxxxx Funding
has been authorized to select certain members in good standing of the NASD to
participate in the offering of the Units ("Selling Agents").
WHEREAS, the Anthem Dealer-Manager Agreement and the Xxxxx Funding
Dealer-Manager Agreement, collectively referred to as the "Dealer-Manager
Agreement," provide for compensation to the Dealer-Manager to participate in the
offering of the Units, subject to the discounts set forth above for certain
Investors, which compensation includes, but is not limited to, for each Unit
sold:
1
o a 2.5% Dealer-Manager fee;
o a 7% sales commission;
o a .5% accountable marketing expenses fee; and
o a .5% reimbursement of the Selling Agents' bona fide
accountable due diligence expenses;
all or a portion of which will be reallowed to the Selling Agents and
wholesalers.
WHEREAS, under the terms of the Dealer-Manager Agreement the
Subscription Proceeds are required to be held in escrow subject to the receipt
and acceptance by the Managing General Partner of the minimum Subscription
Proceeds of $1,000,000, excluding any optional subscription by the Managing
General Partner, its officers, directors, and Affiliates.
WHEREAS, the Units may also be offered and sold by the officers and
directors of the Managing General Partner without receiving a sales commission
or other compensation on their sales.
WHEREAS, no subscriptions to the Partnership will be accepted after the
"Offering Termination Date," which is the first to occur of either:
o receipt of the maximum Subscription Proceeds of
$___________________; or
o July 30, 2004.
WHEREAS, to facilitate compliance with the terms of the Dealer-Manager
Agreement and Rule 15c2-4 adopted under the Securities Exchange Act of 1934, the
Managing General Partner and the Dealer-Manager desire to have the Subscription
Proceeds deposited with the Escrow Agent and the Escrow Agent agrees to hold the
Subscription Proceeds under the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained in this Agreement, the parties to this Agreement, intending to be
legally bound, agree as follows:
1. Appointment of Escrow Agent. The Managing General Partner, the
Partnership, and the Dealer-Manager appoint the Escrow Agent as the
escrow agent to receive and to hold the Subscription Proceeds deposited
with the Escrow Agent by the Dealer-Manager and the Managing General
Partner under this Agreement, and the Escrow Agent agrees to serve in
this capacity during the term and based on the provisions of this
Agreement.
2. Deposit of Subscription Proceeds. Pending receipt of the minimum
Subscription Proceeds of $1,000,000, the Dealer-Manager and the
Managing General Partner shall deposit the Subscription Proceeds of
each Investor to whom they sell Units with the Escrow Agent and shall
deliver to the Escrow Agent a copy of the "Subscription Agreement,"
which is the execution and subscription instrument signed by the
Investor to evidence his agreement to purchase Units in the
Partnership. Payment for each subscription for Units shall be in the
form of a check or wire made payable to "Atlas America Public
#12-2004(A) Limited Partnership, Escrow Agent, National City Bank of
Pennsylvania."
3. Investment of Subscription Proceeds. The Subscription Proceeds shall be
deposited in an interest bearing account maintained by the Escrow Agent
as directed by the Managing General
Escrow Agreement 2
Partner. This may be a savings account, bank money market account,
short-term certificates of deposit issued by a bank, or short-term
certificates issued or guaranteed by the United States government.
The interest earned shall be added to the Subscription Proceeds
and disbursed in accordance with the provisions of Paragraph 4 or
5 of this Agreement, as the case may be.
4. Distribution of Subscription Proceeds. If the Escrow Agent:
(a) receives proper written notice from an authorized officer of
the Managing General Partner that at least the minimum
Subscription Proceeds of $1,000,000 have been received and
accepted by the Managing General Partner; and
(b) determines that Subscription Proceeds for at least $1,000,000
have been deposited, accepted and cleared the banking system
and are good;
then the Escrow Agent shall promptly release and distribute to the
Managing General Partner the escrowed Subscription Proceeds which have
cleared the banking system and are good plus any interest paid and
investment income earned on the Subscription Proceeds while held by the
Escrow Agent in the escrow account.
After the initial distribution, any remaining Subscription Proceeds,
plus any interest paid and investment income earned on the Subscription
Proceeds while held by the Escrow Agent in the escrow account, shall be
promptly released and distributed to the Managing General Partner by
the Escrow Agent as the Subscription Proceeds clear the banking system
after a 10 day period from the date of deposit.
5. Separate Partnership Account. During the continuation of the offering
after the Partnership is funded with cleared Subscription Proceeds of
at least $1,000,000 and the Escrow Agent receives the notice described
in Paragraph 4 of this Agreement, and before the Offering Termination
Date, any additional Subscription Proceeds may be deposited by the
Dealer-Manager and the Managing General Partner directly in a separate
Partnership account which shall not be subject to the terms of this
Agreement.
6. Distributions to Subscribers.
(a) If the Partnership is not funded as contemplated because less
than the minimum Subscription Proceeds of $1,000,000 have been
received and accepted by the Managing General Partner by
twelve (12:00) p.m. (noon), local time, EASTERN STANDARD TIME
on the Offering Termination Date, or for any other reason,
then the Managing General Partner shall notify the Escrow
Agent, and the Escrow Agent promptly shall distribute to each
Investor, for which Escrow Agent has a copy of a Subscription
Agreement, a refund check made payable to the Investor in an
amount equal to the Subscription Proceeds of the Investor,
plus any interest paid or investment income earned on the
Investor's Subscription Proceeds while held by the Escrow
Agent in the escrow account.
(b) If a subscription for Units submitted by an Investor is
rejected by the Managing General Partner for any reason after
the Subscription Proceeds relating to the subscription have
been deposited with the Escrow Agent, then the Managing
General Partner promptly shall notify in writing, the Escrow
Agent of the rejection, and the Escrow Agent shall promptly
distribute to the Investor a refund check made payable to the
Investor, for which Escrow Agent has a copy of a Subscription
Agreement, in an amount equal to the Subscription Proceeds of
the Investor,
Escrow Agreement 3
plus any interest paid or investment income earned on the
Investor's Subscription Proceeds while held by the Escrow
Agent in the escrow account.
7. Compensation and Expenses of Escrow Agent. The Managing General Partner
shall be solely responsible for and shall pay the compensation of the
Escrow Agent for its services under this Agreement, as provided in
Appendix 1 to this Agreement and made a part of this Agreement, and the
charges, expenses (including any reasonable attorneys' fees), and other
out-of-pocket expenses incurred by the Escrow Agent in connection with
the administration of the provisions of this Agreement. The Escrow
Agent shall have no lien on the Subscription Proceeds deposited in the
escrow account unless and until the Partnership is funded with cleared
Subscription Proceeds of at least $1,000,000 and the Escrow Agent
receives the proper written notice described in Paragraph 4 of this
Agreement, at which time the Escrow Agent shall have, and is granted, a
prior lien on any property, cash, or assets held under this Agreement,
with respect to its unpaid compensation and nonreimbursed expenses,
superior to the interests of any other persons or entities.
8. Duties of Escrow Agent. The Escrow Agent shall not be obligated to
accept any notice, make any delivery, or take any other action under
this Agreement unless the notice or request or demand for delivery or
other action is in writing and given or made by the Managing General
Partner or an authorized officer of the Managing General Partner. In no
event shall the Escrow Agent be obligated to accept any notice,
request, or demand from anyone other than the Managing General Partner.
9. Liability of Escrow Agent. The Escrow Agent shall not be liable for any
damages, or have any obligations other than the duties prescribed in
this Agreement in carrying out or executing the purposes and intent of
this Agreement. However, nothing in this Agreement shall relieve the
Escrow Agent from liability arising out of its own willful misconduct
or gross negligence. The Escrow Agent's duties and obligations under
this Agreement shall be entirely administrative and not discretionary.
The Escrow Agent shall not be liable to any party to this Agreement or
to any third-party as a result of any action or omission taken or made
by the Escrow Agent in good faith. The parties to this Agreement will
jointly and severally indemnify the Escrow Agent, hold the Escrow Agent
harmless, and reimburse the Escrow Agent from, against and for, any and
all liabilities, costs, fees and expenses (including reasonable
attorney's fees) the Escrow Agent may suffer or incur by reason of its
execution and performance of this Agreement. If any legal questions
arise concerning the Escrow Agent's duties and obligations under this
Agreement, then the Escrow Agent may consult with its counsel and rely
without liability on written opinions given to it by its counsel.
The Escrow Agent shall be protected in acting on any written notice,
request, waiver, consent, authorization, or other paper or document
which the Escrow Agent, in good faith, believes to be genuine and what
it purports to be.
If there is any disagreement between any of the parties to this
Agreement, or between them or any other person, resulting in adverse
claims or demands being made in connection with this Agreement, or if
the Escrow Agent, in good faith, is in doubt as to what action it
should take under this Agreement, then the Escrow Agent may, at its
option, refuse to comply with any claims or demands on it or refuse to
take any other action under this Agreement, so long as the disagreement
continues or the doubt exists. In any such event, the Escrow Agent
shall not be or become liable in any way or to any person for its
failure or refusal to act and the Escrow Agent shall be entitled to
continue to so refrain from acting until the dispute is resolved by the
parties involved.
Escrow Agreement 4
National City Bank of Pennsylvania is acting solely as the Escrow Agent
and is not a party to, nor has it reviewed or approved any agreement or
matter of background related to this Agreement, other than this
Agreement itself, and has assumed, without investigation, the authority
of the individuals executing this Agreement to be so authorized on
behalf of the party or parties involved.
10. Resignation or Removal of Escrow Agent. The Escrow Agent may resign as
such after giving thirty days' prior written notice to the other
parties to this Agreement. Similarly, the Escrow Agent may be removed
and replaced after receiving thirty days' prior written notice from the
other parties to this Agreement. In either event, the duties of the
Escrow Agent shall terminate thirty days after the date of the notice
(or as of an earlier date as may be mutually agreeable); and the Escrow
Agent shall then deliver the balance of the Subscription Proceeds (and
any interest paid or investment income earned thereon while held by the
Escrow Agent in the escrow account) in its possession to a successor
escrow agent appointed by the other parties to this Agreement as
evidenced by a written notice filed with the Escrow Agent.
If the other parties to this Agreement are unable to agree on a
successor escrow agent or fail to appoint a successor escrow agent
before the expiration of thirty days following the date of the notice
of the Escrow Agent's resignation or removal, then the Escrow Agent may
petition any court of competent jurisdiction for the appointment of a
successor escrow agent or other appropriate relief. Any resulting
appointment shall be binding on all of the parties to this Agreement.
On acknowledgment by any successor escrow agent of the receipt of the
then remaining balance of the Subscription Proceeds (and any interest
paid or investment income earned thereon while held by the Escrow Agent
in the escrow account), the Escrow Agent shall be fully released and
relieved of all duties, responsibilities, and obligations under this
Agreement.
11. Termination. This Agreement shall terminate and the Escrow Agent shall
have no further obligation with respect to this Agreement after the
distribution of all Subscription Proceeds (and any interest paid or
investment income earned thereon while held by the Escrow Agent in the
escrow account) as contemplated by this Agreement or on the written
consent of all the parties to this Agreement.
12. Notice. Any notices or instructions, or both, to be given under this
Agreement shall be validly given if set forth in writing and mailed by
certified mail, return receipt requested, or by facsimile with
confirmation of receipt (originals to be followed in the mail), or by a
nationally recognized overnight courier, as follows:
If to the Escrow Agent:
National City Bank
0000 Xxxx 0xx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxx XxXxxxx LOC 2111
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Escrow Agreement 5
If to the Managing General Partner:
Atlas Resources, Inc.
000 Xxxxxx Xxxx
X.X. Xxx 000
Xxxx Xxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx X. Black
Phone: (000) 000-0000
Facsimile: (000) 000-0000
If to Anthem:
Anthem Securities, Inc.
000 Xxxxxx Xxxx
X.X. Xxx 000
Xxxx Xxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
If to Xxxxx Funding:
Xxxxx Funding, Inc.
000 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Xx.
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Any party may designate any other address to which notices and
instructions shall be sent by notice duly given in accordance with this
Agreement.
13. Miscellaneous.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
(b) This Agreement shall be binding on and shall inure to the
benefit of the undersigned and their respective successors and
assigns.
(c) This Agreement may be executed in multiple copies, each
executed copy to serve as an original.
Escrow Agreement 6
14. The parties hereto and subscribers acknowledge Escrow Agent has not
reviewed and is not making any recommendations with respect to the
securities offered.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
be effective as of the day and year first above written.
NATIONAL CITY BANK OF PENNSYLVANIA
As Escrow Agent
By:
-----------------------------------------
(Authorized Officer)
ATLAS RESOURCES, INC.
A Pennsylvania corporation
By:
-----------------------------------------
Xxxxx X. Black, Vice President -
Partnership Administration
ANTHEM SECURITIES, INC.
A Pennsylvania corporation
By:
-----------------------------------------
Xxxxxx X. Xxxxxxxx, Vice President
XXXXX FUNDING, INC.
A Pennsylvania corporation
By:
-----------------------------------------
Xxxxxxx X. Xxxxx, Xx., President
ATLAS AMERICA PUBLIC #00-0000(X) XXXXXXX
PARTNERSHIP
By: ATLAS RESOURCES, INC.
Managing General Partner
By:
-----------------------------------------
Xxxx X. Xxxxxxxxx, Senior Vice President
- Direct Participation Programs
Escrow Agreement 7
APPENDIX I TO ESCROW AGREEMENT
Compensation for Services of Escrow Agent
REVIEW AND ACCEPTANCE FEE: $ waived
For providing initial review of the Escrow Agreement and all supporting
documents and for initial services associated with establishing the Escrow
Account. This is a one (1) time fee payable upon the opening of the account.
I. Annual Administrative Fee Payable in Advance $3000.00
(or any portion thereof)
II. Remittance of checks returned to subscribers 20.00
(set out in section 6 of the governing agreement)
III. Wire transfers n/a
IV. Purchase or Sale of Securities 100.00
V. Investments (document limits investment to a checking or savings
account, or certificates of deposit) such products offered by any
National City Bank retail branch)- fees are subject to the type of
account the Managing General Partner directs the Escrow Agent to open
and to be governed by the Escrow Agreement.
EXTRAORDINARY SERVICES:
For any services other than those covered by the aforementioned, a special per
hour charge will be made commensurate with the character of the service, time
required and responsibility involved. Such services include but are not limited
to excessive administrative time, attendance at closings, specialized reports,
and record keeping, unusual certifications, etc.
Managing General Partner agrees to report all funds in accordance with
appropriate tax treatment.
FEE SCHEDULE IS SUBJECT TO ANNUAL REVIEW AND/OR ADJUSTMENT UPON AMENDMENT
THERETO.
Escrow Agreement 8
EXHIBIT "A-3"
ATLAS AMERICA PUBLIC #00-0000(X) XXXXXXX PARTNERSHIP
ESCROW AGREEMENT
THIS AGREEMENT is made to be effective as of ________________, by and
among Atlas Resources, Inc., a Pennsylvania corporation (the "Managing General
Partner"), Anthem Securities, Inc., a Pennsylvania corporation ("Anthem"), Xxxxx
Funding, Inc., a Pennsylvania corporation ("Xxxxx Funding"), collectively Anthem
and Xxxxx Funding are referred to as the "Dealer-Manager," Atlas America Public
#12-2004(B) Limited Partnership, a Delaware limited partnership to be formed
(the "Partnership") and National City Bank of Pennsylvania, Pittsburgh,
Pennsylvania, as escrow agent (the "Escrow Agent").
WITNESSETH:
WHEREAS, the Managing General Partner intends to offer publicly for
sale to qualified investors (the "Investors") up to __________ limited and
investor general partner interests in the Partnership (the "Units").
WHEREAS, each Investor will be required to pay his subscription in full
on subscribing by check or wire (the "Subscription Proceeds").
WHEREAS, the cost per Unit will be $10,000 subject to certain discounts
of up to10.5% ($1,050 per Unit) for sales to the Managing General Partner, its
officers, directors and affiliates, registered investment advisors and their
clients, Selling Agents and their registered representatives and principals, and
investors who buy Units through the officers and directors of the Managing
General Partner. Also, the Managing General Partner, in its discretion, may
accept one-half Unit ($5,000) subscriptions, with larger subscriptions permitted
in $1,000 increments.
WHEREAS, the Managing General Partner and Anthem have executed an
agreement ("Anthem Dealer-Manager Agreement") under which Anthem will solicit
subscriptions for Units in all states other than Minnesota and New Hampshire on
a "best efforts" "all or none" basis for Subscription Proceeds of $1,000,000 and
on a "best efforts" basis for the remaining Units on behalf of the Managing
General Partner and the Partnership and under which Anthem has been authorized
to select certain members in good standing of the National Association of
Securities Dealers, Inc. ("NASD") to participate in the offering of the Units
("Selling Agents").
WHEREAS, the Managing General Partner and Xxxxx Funding have executed
an agreement ("Xxxxx Funding Dealer-Manager Agreement") under which Xxxxx
Funding will solicit subscriptions for Units in the states of Minnesota and New
Hampshire on a "best efforts" "all or none" basis for Subscription Proceeds of
$1,000,000 and on a "best efforts" basis for the remaining Units on behalf of
the Managing General Partner and the Partnership and under which Xxxxx Funding
has been authorized to select certain members in good standing of the NASD to
participate in the offering of the Units ("Selling Agents").
WHEREAS, the Anthem Dealer-Manager Agreement and the Xxxxx Funding
Dealer-Manager Agreement, collectively referred to as the "Dealer-Manager
Agreement," provide for compensation to the Dealer-Manager to participate in the
offering of the Units, subject to the discounts set forth above for certain
Investors, which compensation includes, but is not limited to, for each Unit
sold:
1
o a 2.5% Dealer-Manager fee;
o a 7% sales commission;
o a .5% accountable marketing expenses fee; and
o a .5% reimbursement of the Selling Agents' bona fide
accountable due diligence expenses;
all or a portion of which will be reallowed to the Selling Agents and
wholesalers.
WHEREAS, under the terms of the Dealer-Manager Agreement the Subscription
Proceeds are required to be held in escrow subject to the receipt and acceptance
by the Managing General Partner of the minimum Subscription Proceeds of
$1,000,000, excluding any optional subscription by the Managing General Partner,
its officers, directors, and Affiliates.
WHEREAS, the Units may also be offered and sold by the officers and
directors of the Managing General Partner without receiving a sales commission
or other compensation on their sales.
WHEREAS, no subscriptions to the Partnership will be accepted after the
"Offering Termination Date," which is the first to occur of either:
o receipt of the maximum Subscription Proceeds of
$___________________; or
o December 31, 2004.
WHEREAS, to facilitate compliance with the terms of the Dealer-Manager
Agreement and Rule 15c2-4 adopted under the Securities Exchange Act of 1934, the
Managing General Partner and the Dealer-Manager desire to have the Subscription
Proceeds deposited with the Escrow Agent and the Escrow Agent agrees to hold the
Subscription Proceeds under the terms and conditions set forth in this
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained in this Agreement, the parties to this Agreement, intending to be
legally bound, agree as follows:
1. Appointment of Escrow Agent. The Managing General Partner, the
Partnership, and the Dealer-Manager appoint the Escrow Agent as the
escrow agent to receive and to hold the Subscription Proceeds deposited
with the Escrow Agent by the Dealer-Manager and the Managing General
Partner under this Agreement, and the Escrow Agent agrees to serve in
this capacity during the term and based on the provisions of this
Agreement.
2. Deposit of Subscription Proceeds. Pending receipt of the minimum
Subscription Proceeds of $1,000,000, the Dealer-Manager and the
Managing General Partner shall deposit the Subscription Proceeds of
each Investor to whom they sell Units with the Escrow Agent and shall
deliver to the Escrow Agent a copy of the "Subscription Agreement,"
which is the execution and subscription instrument signed by the
Investor to evidence his agreement to purchase Units in the
Partnership. Payment for each subscription for Units shall be in the
form of a check or wire made payable to "Atlas America Public
#12-2004(B) Limited Partnership, Escrow Agent, National City Bank of
Pennsylvania."
3. Investment of Subscription Proceeds. The Subscription Proceeds shall be
deposited in an interest bearing account maintained by the Escrow Agent
as directed by the Managing General
Escrow Agreement 2
Partner. This may be a savings account, bank money market account,
short-term certificates of deposit issued by a bank, or short-term
certificates issued or guaranteed by the United States government. The
interest earned shall be added to the Subscription Proceeds and
disbursed in accordance with the provisions of Paragraph 4 or 5 of this
Agreement, as the case may be.
4. Distribution of Subscription Proceeds. If the Escrow Agent:
(a) receives proper written notice from an authorized officer of
the Managing General Partner that at least the minimum
Subscription Proceeds of $1,000,000 have been received and
accepted by the Managing General Partner; and
(b) determines that Subscription Proceeds for at least $1,000,000
have been deposited, accepted and cleared the banking system
and are good;
then the Escrow Agent shall promptly release and distribute to the
Managing General Partner the escrowed Subscription Proceeds which have
cleared the banking system and are good plus any interest paid and
investment income earned on the Subscription Proceeds while held by the
Escrow Agent in the escrow account.
After the initial distribution, any remaining Subscription Proceeds,
plus any interest paid and investment income earned on the Subscription
Proceeds while held by the Escrow Agent in the escrow account, shall be
promptly released and distributed to the Managing General Partner by
the Escrow Agent as the Subscription Proceeds clear the banking system
after a 10 day period from the date of deposit.
5. Separate Partnership Account. During the continuation of the offering
after the Partnership is funded with cleared Subscription Proceeds of
at least $1,000,000 and the Escrow Agent receives the notice described
in Paragraph 4 of this Agreement, and before the Offering Termination
Date, any additional Subscription Proceeds may be deposited by the
Dealer-Manager and the Managing General Partner directly in a separate
Partnership account which shall not be subject to the terms of this
Agreement.
6. Distributions to Subscribers.
(a) If the Partnership is not funded as contemplated because less
than the minimum Subscription Proceeds of $1,000,000 have been
received and accepted by the Managing General Partner by
twelve (12:00) p.m. (noon), local time, EASTERN STANDARD TIME
on the Offering Termination Date, or for any other reason,
then the Managing General Partner shall notify the Escrow
Agent, and the Escrow Agent promptly shall distribute to each
Investor, for which Escrow Agent has a copy of a Subscription
Agreement, a refund check made payable to the Investor in an
amount equal to the Subscription Proceeds of the Investor,
plus any interest paid or investment income earned on the
Investor's Subscription Proceeds while held by the Escrow
Agent in the escrow account.
(b) If a subscription for Units submitted by an Investor is
rejected by the Managing General Partner for any reason after
the Subscription Proceeds relating to the subscription have
been deposited with the Escrow Agent, then the Managing
General Partner promptly shall notify in writing, the Escrow
Agent of the rejection, and the Escrow Agent shall promptly
distribute to the Investor a refund check made payable to the
Investor, for which Escrow Agent has a copy of a Subscription
Agreement, in an amount equal to the Subscription Proceeds of
the Investor,
Escrow Agreement 3
plus any interest paid or investment income earned on the
Investor's Subscription Proceeds while held by the Escrow
Agent in the escrow account.
7. Compensation and Expenses of Escrow Agent. The Managing General Partner
shall be solely responsible for and shall pay the compensation of the
Escrow Agent for its services under this Agreement, as provided in
Appendix 1 to this Agreement and made a part of this Agreement, and the
charges, expenses (including any reasonable attorneys' fees), and other
out-of-pocket expenses incurred by the Escrow Agent in connection with
the administration of the provisions of this Agreement. The Escrow
Agent shall have no lien on the Subscription Proceeds deposited in the
escrow account unless and until the Partnership is funded with cleared
Subscription Proceeds of at least $1,000,000 and the Escrow Agent
receives the proper written notice described in Paragraph 4 of this
Agreement, at which time the Escrow Agent shall have, and is granted, a
prior lien on any property, cash, or assets held under this Agreement,
with respect to its unpaid compensation and nonreimbursed expenses,
superior to the interests of any other persons or entities.
8. Duties of Escrow Agent. The Escrow Agent shall not be obligated to
accept any notice, make any delivery, or take any other action under
this Agreement unless the notice or request or demand for delivery or
other action is in writing and given or made by the Managing General
Partner or an authorized officer of the Managing General Partner. In no
event shall the Escrow Agent be obligated to accept any notice,
request, or demand from anyone other than the Managing General Partner.
9. Liability of Escrow Agent. The Escrow Agent shall not be liable for any
damages, or have any obligations other than the duties prescribed in
this Agreement in carrying out or executing the purposes and intent of
this Agreement. However, nothing in this Agreement shall relieve the
Escrow Agent from liability arising out of its own willful misconduct
or gross negligence. The Escrow Agent's duties and obligations under
this Agreement shall be entirely administrative and not discretionary.
The Escrow Agent shall not be liable to any party to this Agreement or
to any third-party as a result of any action or omission taken or made
by the Escrow Agent in good faith. The parties to this Agreement will
jointly and severally indemnify the Escrow Agent, hold the Escrow Agent
harmless, and reimburse the Escrow Agent from, against and for, any and
all liabilities, costs, fees and expenses (including reasonable
attorney's fees) the Escrow Agent may suffer or incur by reason of its
execution and performance of this Agreement. If any legal questions
arise concerning the Escrow Agent's duties and obligations under this
Agreement, then the Escrow Agent may consult with its counsel and rely
without liability on written opinions given to it by its counsel.
The Escrow Agent shall be protected in acting on any written notice,
request, waiver, consent, authorization, or other paper or document
which the Escrow Agent, in good faith, believes to be genuine and what
it purports to be.
If there is any disagreement between any of the parties to this
Agreement, or between them or any other person, resulting in adverse
claims or demands being made in connection with this Agreement, or if
the Escrow Agent, in good faith, is in doubt as to what action it
should take under this Agreement, then the Escrow Agent may, at its
option, refuse to comply with any claims or demands on it or refuse to
take any other action under this Agreement, so long as the disagreement
continues or the doubt exists. In any such event, the Escrow Agent
shall not be or become liable in any way or to any person for its
failure or refusal to act and the Escrow Agent shall be entitled to
continue to so refrain from acting until the dispute is resolved by the
parties involved.
Escrow Agreement 4
National City Bank of Pennsylvania is acting solely as the Escrow Agent
and is not a party to, nor has it reviewed or approved any agreement or
matter of background related to this Agreement, other than this
Agreement itself, and has assumed, without investigation, the authority
of the individuals executing this Agreement to be so authorized on
behalf of the party or parties involved.
10. Resignation or Removal of Escrow Agent. The Escrow Agent may resign as
such after giving thirty days' prior written notice to the other
parties to this Agreement. Similarly, the Escrow Agent may be removed
and replaced after receiving thirty days' prior written notice from the
other parties to this Agreement. In either event, the duties of the
Escrow Agent shall terminate thirty days after the date of the notice
(or as of an earlier date as may be mutually agreeable); and the Escrow
Agent shall then deliver the balance of the Subscription Proceeds (and
any interest paid or investment income earned thereon while held by the
Escrow Agent in the escrow account) in its possession to a successor
escrow agent appointed by the other parties to this Agreement as
evidenced by a written notice filed with the Escrow Agent.
If the other parties to this Agreement are unable to agree on a
successor escrow agent or fail to appoint a successor escrow agent
before the expiration of thirty days following the date of the notice
of the Escrow Agent's resignation or removal, then the Escrow Agent may
petition any court of competent jurisdiction for the appointment of a
successor escrow agent or other appropriate relief. Any resulting
appointment shall be binding on all of the parties to this Agreement.
On acknowledgment by any successor escrow agent of the receipt of the
then remaining balance of the Subscription Proceeds (and any interest
paid or investment income earned thereon while held by the Escrow Agent
in the escrow account), the Escrow Agent shall be fully released and
relieved of all duties, responsibilities, and obligations under this
Agreement.
11. Termination. This Agreement shall terminate and the Escrow Agent shall
have no further obligation with respect to this Agreement after the
distribution of all Subscription Proceeds (and any interest paid or
investment income earned thereon while held by the Escrow Agent in the
escrow account) as contemplated by this Agreement or on the written
consent of all the parties to this Agreement.
12. Notice. Any notices or instructions, or both, to be given under this
Agreement shall be validly given if set forth in writing and mailed by
certified mail, return receipt requested, or by facsimile with
confirmation of receipt (originals to be followed in the mail), or by a
nationally recognized overnight courier, as follows:
If to the Escrow Agent:
National City Bank
0000 Xxxx 0xx Xxxxxx
Xxxxxxxxx, Xxxx 00000
Attention: Xxxx XxXxxxx LOC 2111
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Escrow Agreement 5
If to the Managing General Partner:
Atlas Resources, Inc.
000 Xxxxxx Xxxx
X.X. Xxx 000
Xxxx Xxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxx X. Black
Phone: (000) 000-0000
Facsimile: (000) 000-0000
If to Anthem:
Anthem Securities, Inc.
000 Xxxxxx Xxxx
X.X. Xxx 000
Xxxx Xxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
Phone: (000) 000-0000
Facsimile: (000) 000-0000
If to Xxxxx Funding:
Xxxxx Funding, Inc.
000 Xxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx, Xx.
Phone: (000) 000-0000
Facsimile: (000) 000-0000
Any party may designate any other address to which notices and
instructions shall be sent by notice duly given in accordance with this
Agreement.
13. Miscellaneous.
(a) This Agreement shall be governed by and construed in
accordance with the laws of the Commonwealth of Pennsylvania.
(b) This Agreement shall be binding on and shall inure to the
benefit of the undersigned and their respective successors and
assigns.
(c) This Agreement may be executed in multiple copies, each
executed copy to serve as an original.
Escrow Agreement 6
14. The parties hereto and subscribers acknowledge Escrow Agent has not
reviewed and is not making any recommendations with respect to the
securities offered.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement to
be effective as of the day and year first above written.
NATIONAL CITY BANK OF PENNSYLVANIA
As Escrow Agent
By:
------------------------------------------
(Authorized Officer)
ATLAS RESOURCES, INC.
A Pennsylvania corporation
By:
------------------------------------------
Xxxxx X. Black, Vice President
- Partnership Administration
ANTHEM SECURITIES, INC.
A Pennsylvania corporation
By:
------------------------------------------
Xxxxxx X. Xxxxxxxx, Vice President
XXXXX FUNDING, INC.
A Pennsylvania corporation
By:
------------------------------------------
Xxxxxxx X. Xxxxx, Xx., President
ATLAS AMERICA PUBLIC #00-0000(X) XXXXXXX
PARTNERSHIP
By: ATLAS RESOURCES, INC.
Managing General Partner
By:
-----------------------------------------
Xxxx X. Xxxxxxxxx, Senior Vice President
- Direct Participation Programs
Escrow Agreement 7
APPENDIX I TO ESCROW AGREEMENT
Compensation for Services of Escrow Agent
REVIEW AND ACCEPTANCE FEE: $ waived
For providing initial review of the Escrow Agreement and all supporting
documents and for initial services associated with establishing the Escrow
Account. This is a one (1) time fee payable upon the opening of the account.
I. Annual Administrative Fee Payable in Advance $3000.00
(or any portion thereof)
II. Remittance of checks returned to subscribers 20.00
(set out in section 6 of the governing agreement)
III. Wire transfers n/a
IV. Purchase or Sale of Securities 100.00
V. Investments (document limits investment to a checking or savings
account, or certificates of deposit) such products offered by any
National City Bank retail branch)- fees are subject to the type of
account the Managing General Partner directs the Escrow Agent to open
and to be governed by the Escrow Agreement.
EXTRAORDINARY SERVICES:
For any services other than those covered by the aforementioned, a special per
hour charge will be made commensurate with the character of the service, time
required and responsibility involved. Such services include but are not limited
to excessive administrative time, attendance at closings, specialized reports,
and record keeping, unusual certifications, etc.
Managing General Partner agrees to report all funds in accordance with
appropriate tax treatment.
FEE SCHEDULE IS SUBJECT TO ANNUAL REVIEW AND/OR ADJUSTMENT UPON AMENDMENT
THERETO.
Escrow Agreement 8
EXHIBIT "B"
SELLING AGENT AGREEMENT
WITH ANTHEM SECURITIES, INC.
TO:
---------------------------------
RE: ATLAS AMERICA PUBLIC #12-2003 PROGRAM
Gentlemen:
Atlas Resources, Inc. will be the Managing General Partner in a series
of up to three limited partnerships to be organized under the Delaware Revised
Uniform Limited Partnership Act:
o Atlas America Public #12-2003 Limited Partnership;
o Atlas America Public #12-2004(A) Limited Partnership; and
o Atlas America Public #12-2004(B) Limited Partnership.
which are referred to as the "Partnership" or the "Partnerships." The Units in
the Partnerships, which are referred to as the "Units," and the offering are
described in the Prospectus, which is referred to as the "Prospectus."
Prospectuses relating to the Units have been furnished to you with this
Agreement.
Our firm, Anthem Securities, Inc., which is referred to as the
"Dealer-Manager," has entered into a Dealer-Manager Agreement for sales in all
states other than Minnesota and New Hampshire, a copy of which has been
furnished to you and is incorporated in this Agreement by reference, with the
Managing General Partner and the Partnerships under which the Dealer-Manager has
agreed to form a group of NASD member firms, which are referred to as the
"Selling Agents." The Selling Agents will obtain subscriptions for Units in each
Partnership in all states other than:
o Minnesota; and
o New Hampshire
on a "best efforts" basis under the Securities Act of 1933, as amended, which is
referred to as the "Act," and the provisions of the Prospectus.
You are invited to become one of the Selling Agents on a non-exclusive
basis. By your acceptance below you agree to act in that capacity and to use
your best efforts, in accordance with the terms and conditions of this
Agreement, to solicit subscriptions 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 other than:
o Minnesota; and
o New Hampshire.
1
This Agreement, however, shall not be construed to prohibit your participation
as a selling agent in Minnesota and New Hampshire under a duly executed selling
agent agreement entered into by you and any other authorized "Dealer-Manager"
for the Partnerships.
1. Representations and Warranties of Selling Agent. You represent and
warrant to the Dealer-Manager that:
(a) You are a corporation duly organized, validly existing, and in
good standing under the laws of the state of your formation or
of any jurisdiction to the laws of which you are subject, with
all requisite power and authority to enter into this Agreement
and to carry out your obligations under this Agreement.
(b) This Agreement when accepted and approved by you will be duly
authorized, executed, and delivered by you and will be a valid
and binding agreement on your part in accordance with its
terms.
(c) The consummation of the transactions contemplated by this
Agreement and the Prospectus will not result in the following:
(i) any breach of any of the terms or conditions of, or
constitute a default under your Articles of
Incorporation or Bylaws, or any other indenture,
agreement, or other instrument to which you are a
party; or
(ii) any violation of any order applicable to you of any
court or any federal or state regulatory body or
administrative agency having jurisdiction over you or
over your affiliates.
(d) You are duly registered under the provisions of the Securities
Exchange Act of 1934, which is referred to as the "Act of
1934," as a dealer, and you are a member in good standing of
the NASD. You are duly registered as a broker/dealer in the
states where you are required to be registered in order to
carry out your obligations as contemplated by this Agreement
and the Prospectus. You agree to maintain all the foregoing
registrations in good standing throughout the term of the
offer and sale of the Units, and you agree to comply with all
statutes and other requirements applicable to you as a
broker/dealer under those registrations.
(e) Pursuant to your appointment as a Selling Agent, you shall
comply with all the provisions of the Act, insofar as the Act
applies to your activities under this Agreement. Further, you
shall not engage in any activity which would cause the offer
and/or sale of the Units not to comply with the Act, the Act
of 1934, the applicable rules and regulations of the
Securities and Exchange Commission, which is referred to as
the "Commission," the applicable state securities laws and
regulations, this Agreement, and the NASD Conduct Rules
including Rules 2420, 2730, 2740, 2750, and 2810(b)(2) and
(b)(3), which provide as follows:
Sec. (b)(2)
Suitability
(A) A member or person associated with a member
shall not underwrite or participate in a
public offering of a direct participation
program unless standards of suitability have
been established by the program for
participants therein and such standards are
fully disclosed in the prospectus and are
consistent with the provisions of
subparagraph (B) of this section.
Anthem Securities, Inc. 2
Selling Agent Agreement
(B) In recommending to a participant the
purchase, sale or exchange of an interest in
a direct participation program, a member or
person associated with a member shall:
(i) have reasonable grounds to believe,
on the basis of information obtained
from the participant concerning his
investment objectives, other
investments, financial situation and
needs, and any other information
known by the member or associated
person, that:
(a) the participant is or will
be in a financial position
appropriate to enable him
to realize to a significant
extent the benefits
described in the
prospectus, including the
tax benefits where they are
a significant aspect of the
program;
(b) the participant has a fair
market net worth sufficient
to sustain the risks
inherent in the program,
including loss of
investment and lack of
liquidity; and
(c) the program is otherwise
suitable for the
participant; and
(ii) maintain in the files of the member
documents disclosing the basis upon
which the determination of
suitability was reached as to each
participant.
(C) Notwithstanding the provisions of
subparagraphs (A) and (B) hereof, no member
shall execute any transaction in a direct
participation program in a discretionary
account without prior written approval of
the transaction by the customer.
Sec. (b)(3)
Disclosure
(A) Prior to participating in a public offering
of a direct participation program, a member
or person associated with a member shall
have reasonable grounds to believe, based on
information made available to him by the
sponsor through a prospectus or other
materials, that all material facts are
adequately and accurately disclosed and
provide a basis for evaluating the program.
(B) In determining the adequacy of disclosed
facts pursuant to subparagraph (A) hereof, a
member or person associated with a member
shall obtain information on material facts
relating at a minimum to the following, if
relevant in view of the nature of the
program:
(i) items of compensation;
(ii) physical properties;
(iii) tax aspects;
Anthem Securities, Inc. 3
Selling Agent Agreement
(iv) financial stability and experience
of the sponsor;
(v) the program's conflicts and risk
factors; and
(vi) appraisals and other pertinent
reports.
(C) For purposes of subparagraphs (A) and (B)
hereof, a member or person associated with a
member may rely upon the results of an
inquiry conducted by another member or
members, provided that:
(i) the member or person associated with
a member has reasonable grounds to
believe that such inquiry was
conducted with due care;
(ii) the results of the inquiry were
provided to the member or person
associated with a member with the
consent of the member or members
conducting or directing the inquiry;
and
(iii) no member that participated in the
inquiry is a sponsor of the program
or an affiliate of such sponsor.
(D) Prior to executing a purchase transaction in
a direct participation program, a member or
person associated with a member shall inform
the prospective participant of all pertinent
facts relating to the liquidity and
marketability of the program during the term
of investment.
(f) You shall not offer or sell the Units in any state until you
have been advised in writing by the Managing General Partner,
or the Managing General Partner's special counsel, that the
offer or sale of the Units:
(i) has been qualified in the state;
(ii) is exempt from the qualification requirements imposed
by the state; or
(iii) the qualification is otherwise not required.
(g) You have received copies of the Prospectus relating to the
Units and you have relied only on the statements contained in
the Prospectus and not on any other statements whatsoever,
either written or oral, with respect to the details of the
offering of Units.
You shall deliver a copy of the Prospectus to each subscriber
to whom you sell the Units at or before the completion of any
sale of Units to such subscriber (which sale shall be deemed,
for the purposes of this Agreement to occur on the date on
which that subscriber delivers subscription funds to the
escrow agent), or earlier if required by the blue sky or
securities laws of any state. Unless advised otherwise by the
Managing General Partner, you may choose to provide each
offeree with the following sales materials which are
collectively referred to as the "Sales Literature":
(i) a flyer entitled "Atlas America Public #12-2003
Program";
(ii) an article entitled "Tax Rewards with Oil and Gas
Partnerships";
Anthem Securities, Inc. 4
Selling Agent Agreement
(iii) a brochure of tax scenarios entitled "How an
Investment in Atlas America Public #12-2003 Program
Can Help Achieve an Investor's Tax Objectives";
(iv) a brochure entitled "Investing in Atlas America
Public #12-2003 Program";
(v) a booklet entitled "Outline of Tax Consequences of
Oil and Gas Drilling Programs";
(vi) a brochure entitled "The Appalachian Basin: A Prime
Drilling Location Which Commands a Premium";
(vii) a brochure entitled "Investment Insights - Tax Time";
(viii) a brochure entitled "Frequently Asked Questions"; and
(ix) possibly other supplementary materials.
Any such Sales Literature, if distributed, must have been
preceded or must be accompanied by the Prospectus.
(h) You agree that you shall not place any advertisement or other
solicitation with respect to the Units (including without
limitation any material for use in any newspaper, magazine,
radio or television commercial, telephone recording, motion
picture, or other public media) without:
(i) the prior written approval of the Managing General
Partner; and
(ii) the prior written approval of the form and content
thereof by the Commission, the NASD and the
securities authorities of the states where such
advertisement or solicitation is to be circulated.
Any such advertisements or solicitations shall be at your
expense.
(i) If a supplement or amendment to the Prospectus is prepared and
delivered to you by the Managing General Partner or the
Dealer-Manager, you agree as follows:
(i) to distribute each supplement or amendment to the
Prospectus to every person who has previously
received a copy of the Prospectus from you; and
(ii) to include each supplement or amendment in all future
deliveries of any Prospectus.
(j) In connection with any offer or sale of the Units, you agree
to the following:
(i) to comply in all respects with statements set forth
in the Prospectus, the Partnership Agreement, and any
supplements or amendments to the Prospectus;
(ii) not to make any statement inconsistent with the
statements in the Prospectus, the Partnership
Agreement, and any supplements or amendments to the
Prospectus;
(iii) not to make any untrue or misleading statements of a
material fact in connection with the Units; and
Anthem Securities, Inc. 5
Selling Agent Agreement
(iv) not to provide any written information, statements,
or sales materials other than the Prospectus, the
Sales Literature, and any supplements or amendments
to the Prospectus unless approved in writing by the
Managing General Partner.
(k) You agree to use your best efforts in the solicitation and
sale of the Units, including that:
(i) you comply with all the provisions of the Act, the
Act of 1934, the applicable rules and regulations of
the Commission, the applicable state securities laws
and regulations, this Agreement, and the NASD Conduct
Rules;
(ii) the prospective purchasers meet the suitability
requirements set forth in the Prospectus, the
Subscription Agreement, and this Agreement; and
(iii) the prospective purchasers properly complete and
execute the Subscription Agreement , which has been
provided as Exhibit (I-B) to the Partnership
Agreement, Exhibit (A) of the Prospectus, together
with any additional forms provided in any supplement
or amendment to the Prospectus, or otherwise provided
to you by the Managing General Partner or the
Dealer-Manager to be completed by prospective
purchasers.
The Managing General Partner shall have the right to reject
any subscription at any time for any reason without liability
to it. Subscription funds and executed subscription packets
shall be transmitted as set forth in Section 11 of this
Agreement.
(l) Although not anticipated, if you assist in any transfers of
the Units, then you shall comply with the requirements of
Rules 2810(b)(2)(B) and (b)(3)(D) of the NASD Conduct Rules.
(m) You agree and covenant that:
(i) the representations and warranties you make in this
Agreement are and shall be true and correct at the
applicable closing date; and
(ii) you shall and have fulfilled all your obligations
under this Agreement at the applicable closing date.
2. Commissions.
(a) Subject to the receipt of the minimum required subscription
proceeds of $1,000,000 as described in Section 4(d) of the
Dealer-Manager Agreement, and the discounts set forth in
Section 4(c) of the Dealer-Manager Agreement for sales to the
Managing General Partner, its officers, directors and
affiliates, registered investment advisors and their clients,
Selling Agents and their registered representatives and
principals, investors who buy Units through the officers or
directors of the Managing General Partner, the Dealer-Manager
is entitled to receive from the Managing General Partner a 7%
Sales Commission, a .5% accountable marketing expense fee, and
a .5% reimbursement of the Selling Agents' bona fide
accountable due diligence expenses per Unit, based on the
aggregate amount of all Unit subscriptions to a Partnership
secured by the Dealer-Manager or the selling group formed by
the Dealer-Manager and accepted by the Managing General
Partner.
Subject to the terms and conditions set forth in this
Agreement, including the Dealer-Manager's receipt from you of
the documentation required of you in Section 1 of this
Anthem Securities, Inc. 6
Selling Agent Agreement
Agreement, the Dealer-Manager agrees to pay you on Units sold
by you and accepted by the Managing General Partner:
(i) a 7% Sales Commission per Unit subject to a reduction
as discussed in (iv) below for non-cash compensation,
which means any form of compensation received in
connection with the sale of the Units that is not
cash compensation, including but not limited to
merchandise, gifts and prizes, travel expenses, meals
and lodging;
(ii) up to a .5% reimbursement of your bona fide
accountable due diligence expenses per Unit; and
(iii) subject to the performance by you of your obligations
under Appendix I to this Agreement, which is
incorporated in this Agreement by reference, up to a
.5% reimbursement of your bona fide accountable
marketing expenses, which are presented to and
approved in advance by the Dealer-Manager, per Unit.
An example of bona fide accountable marketing
expenses which would be reimbursed by the
Dealer-Manager to the extent they are approved in
advance by the Dealer-Manager are your expenses
associated with retail seminars (which do not exceed
.5% per Unit). In addition, the Dealer-Manager or
Managing General Partner may make certain non-cash
compensation arrangements with your registered
representatives, such as payment or reimbursement by
the Managing General Partner in connection with
meetings held by the Managing General Partner for the
purpose of training or education of your registered
representatives, provided that the registered
representative obtains your prior approval to attend
the meeting and attendance by your registered
representatives is not conditioned by you on the
achievement of a sales target, the location is
appropriate to the purpose of the meeting, which
means an office of the Managing General Partner, or a
facility located in the vicinity of the office, or a
regional location with respect to regional meetings,
the payment or reimbursement is not applied to the
expenses of guests of the registered representative,
and the payment or reimbursement by the Managing
General Partner is not conditioned by the Managing
General Partner on the achievement of a sales target.
(iv) Any non-cash compensation arrangements made by the
Dealer-Manager or the Managing General Partner with
your registered representatives, which are subject to
your prior approval as described in (iii) above, will
first be applied against the .5% per Unit available
for reimbursement of your bona fide accountable
marketing expenses by the Dealer-Manager. To the
extent these non-cash compensation arrangements
exceed .5% per Unit, either alone or when added to
the Dealer-Manager's reimbursement of your other bona
fide accountable marketing expenses as described in
(iii) above, then the excess amount of these non-cash
compensation arrangements over the .5% per Unit shall
be deducted from your 7% Sales Commission per Unit.
(v) Your compensation and reimbursements which are owed
to you as set forth above shall be paid to you within
seven business days after the Dealer-Manager has
received the related amounts owed to it under the
Dealer-Manager Agreement, which the Dealer-Manager is
entitled to receive within five business days after
the conditions described in Section 4(e) of the
Dealer-Manager Agreement are satisfied and
approximately every two weeks thereafter until the
respective Partnership's Offering Termination Date,
which is described in Section 1 of the Dealer-Manager
Agreement. The balance shall be paid to the
Dealer-Manager
Anthem Securities, Inc. 7
Selling Agent Agreement
within fourteen business days after the respective
Partnership's Offering Termination Date.
(b) Notwithstanding anything in this Agreement to the contrary,
you agree to waive payment of your compensation and
reimbursements which are owed to you as set forth above until
the Dealer-Manager is in receipt of the related amounts owed
to it under the Dealer-Manager Agreement, and the
Dealer-Manager's liability to pay your compensation and
reimbursements under this Agreement shall be limited solely to
the proceeds of the related amounts owed to it under the
Dealer-Manager Agreement.
(c) As provided in Section 4(d) of the Dealer-Manager Agreement, a
Partnership shall not begin operations unless it receives
subscription proceeds for at least $1,000,000 by its
respective Offering Termination Date. If this amount is not
secured by the respective Partnership's Offering Termination
Date, then nothing shall be payable to you for the respective
Partnership and all funds advanced by subscribers for Units in
the respective Partnership shall be returned to them with
interest earned, if any.
3. Blue Sky Qualification. The Managing General Partner may elect not to
qualify or register Units in any state or jurisdiction in which it
deems the qualification or registration is not warranted for any reason
in its sole discretion. On application to the Dealer-Manager you will
be informed as to the states and jurisdictions in which the Units have
been qualified for sale or are exempt under the respective securities
or "Blue Sky" laws of those states and jurisdictions.
Notwithstanding the foregoing, the Dealer-Manager, the Partnerships,
and the Managing General Partner have not assumed and will not assume
any obligation or responsibility as to your right to act as a
broker/dealer with respect to the Units in any state or jurisdiction.
4. Expense of Sale. The expenses in connection with the offer and sale of
the Units shall be payable as set forth below.
(a) The Dealer-Manager shall pay all expenses incident to the
performance of its obligations under this Agreement, including
the fees and expenses of its attorneys and accountants, even
if the offering of any or all of the Partnerships is not
successfully completed.
(b) You shall pay all expenses incident to the performance of your
obligations under this Agreement, including the fees and
expenses of your own counsel and accountants, even if the
offering of any or all of the Partnerships is not successfully
completed.
5. Conditions of Your Duties. Your obligations under this Agreement, as of
the date of this Agreement and at the applicable closing date, shall be
subject to the following:
(a) the performance by the Dealer-Manager of its obligations under
this Agreement; and
(b) the performance by the Managing General Partner of its
obligations under the Dealer-Manager Agreement.
6. Conditions of Dealer-Manager's Duties. The Dealer-Manager's obligations
under this Agreement, including the duty to pay compensation and
reimbursements to you as set forth in Section 2 of this Agreement,
shall be subject to the following:
Anthem Securities, Inc. 8
Selling Agent Agreement
(a) the accuracy, as of the date of this Agreement and at the
applicable closing date as if made at the applicable closing
date, of your representations and warranties made in this
Agreement;
(b) the performance by you of your obligations under this
Agreement; and
(c) the Dealer-Manager's receipt, at or before the applicable
closing date, of a fully executed Subscription Agreement for
each prospective purchaser as required by Section 1(k) of this
Agreement.
7. Indemnification.
(a) You shall indemnify and hold harmless the Dealer-Manager, the
Managing General Partner, each Partnership and its attorneys
against any losses, claims, damages or liabilities, joint or
several, to which they may become subject under the Act, the
Act of 1934, or otherwise insofar as the losses, claims,
damages, or liabilities (or actions in respect thereof) arise
out of or are based on your breach of any of your duties and
obligations, representations, or warranties under the terms or
provisions of this Agreement, and you shall reimburse them for
any legal or other expenses reasonably incurred in connection
with investigating or defending the losses, claims, damages,
liabilities, or actions.
(b) The Dealer-Manager shall indemnify and hold you harmless
against any losses, claims, damages, or liabilities, joint or
several, to which you may become subject under the Act, the
Act of 1934, or otherwise insofar as the losses, claims,
damages, or liabilities (or actions in respect thereof) arise
out of or are based on the Dealer-Manager's breach of any of
its duties and obligations, representations, or warranties
under the terms or provisions of this Agreement, and the
Dealer-Manager shall reimburse you for any legal or other
expenses reasonably incurred in connection with investigating
or defending the losses, claims, damages, liabilities, or
actions.
(c) The foregoing indemnity agreements shall extend on the same
terms and conditions to, and shall inure to the benefit of,
each person, if any, who controls each indemnified party
within the meaning of the Act.
(d) Promptly after receipt by an indemnified party of notice of
the commencement of any action, the indemnified party shall,
if a claim in respect of the action is to be made against the
indemnifying party under this Section, notify the indemnifying
party in 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.
Anthem Securities, Inc. 9
Selling Agent Agreement
8. Representations and Agreements to Survive Delivery. All
representations, warranties, and agreements of the Dealer-Manager and
you in this Agreement, including the indemnity agreements contained in
Section 7 of this Agreement, shall:
(a) survive the delivery, execution and closing of this Agreement;
(b) remain operative and in full force and effect regardless of
any investigation made by or on behalf of you or any person
who controls you within the meaning of the Act, by the
Dealer-Manager, or any of its officers, directors or any
person who controls the Dealer-Manager within the meaning of
the Act, or any other indemnified party; and
(c) survive delivery of the Units.
9. Termination.
(a) You shall have the right to terminate this Agreement other
than the indemnification provisions of Section 7 of this
Agreement by giving notice as specified in Section 16 of this
Agreement any time at or before a closing date:
(i) if the Dealer-Manager has failed, refused, or been
unable at or before a closing date, to perform any of
its obligations under this Agreement; or
(ii) there has occurred an event materially and adversely
affecting the value of the Units.
If you elect to terminate this Agreement other than the indemnification
provisions of Section 7 of this Agreement, then the Dealer-Manager
shall be promptly notified by you by telephone, e-mail, facsimile, or
telegram, confirmed by letter.
(b) The Dealer-Manager may terminate this Agreement other than the
indemnification provisions of Section 7 of this Agreement, for
any reason and at any time, by promptly giving notice to you
by telephone, e-mail, facsimile or telegram, confirmed by
letter.
10. Format of Checks/Escrow Agent. Pending receipt of the minimum
subscription proceeds of $1,000,000 as set forth in Section 4(d) of the
Dealer-Manager Agreement, the Dealer-Manager and you, including if you
are a customer carrying broker/dealer, agree that all subscribers shall
be instructed to make their checks or wires payable solely to the
Escrow Agent for the Partnership in which the Units are then being
offered as follows:
(a) "Atlas Public #12-2003 Limited Partnership, Escrow Agent,
National City Bank of PA";
(b) "Atlas Public #12-2004(A)Limited Partnership, Escrow Agent,
National City Bank of PA"; or
(c) "Atlas Public #12-2004(B)Limited Partnership, Escrow Agent,
National City Bank of PA";
as agent for the respective Partnership then being offered, and you,
including if you are a customer carrying broker/dealer, agree to comply
with Rule 15c2-4 adopted under the Act of 1934. In addition, for
identification purposes, wire transfers should reference the
subscriber's name and the account number of the escrow account for the
Partnership in which the Units are then being offered.
Anthem Securities, Inc. 10
Selling Agent Agreement
If you receive a check not conforming to the foregoing instructions,
then you shall return the check directly to the subscriber not later
than the end of the next business day following its receipt by you from
the subscriber. If the Dealer-Manager receives a check not conforming
to the foregoing instructions, then the Dealer-Manager shall return the
check to you not later than the end of the next business day following
its receipt by the Dealer-Manager and you shall then return the check
directly to the subscriber not later than the end of the next business
day following its receipt by you from the Dealer-Manager. Checks
received by you which conform to the foregoing instructions shall be
transmitted by you under Section 11 "Transmittal Procedures," below.
You agree that you are bound by the terms of the Escrow Agreement, a
copy of which is attached to the Dealer-Manager Agreement as Exhibit
"A."
11. Transmittal Procedures. You, including if you are a customer carrying
broker/dealer, shall transmit received investor funds in accordance
with the following procedures.
(a) Pending receipt of a Partnership's minimum subscription
proceeds of $1,000,000 as set forth in Section 4(d) of the
Dealer-Manager Agreement, you shall promptly transmit, any and
all checks received by you from subscribers and the original
executed Subscription Agreement to the Dealer-Manager by the
end of the next business day following receipt of the check by
you. By the end of the next business day following its receipt
of the check and the original executed subscription documents,
the Dealer-Manager shall transmit the check and a copy of the
executed Subscription Agreement to the Escrow Agent, and the
original executed Subscription Agreement and a copy of the
check to the Managing General Partner.
(b) On receipt by you of notice from the Managing General Partner
or the Dealer-Manager that a Partnership's minimum
subscription proceeds of $1,000,000 as set forth in Section
4(d) of the Dealer-Manager Agreement have been received, you
agree that all subscribers then may be instructed, in the
Managing General Partner's sole discretion, to make their
checks or wires payable solely to the Partnership then being
offered.
Thereafter, you shall promptly transmit any and all checks
received by you from subscribers and the original executed
Subscription Agreement to the Dealer-Manager by the end of the
next business day following receipt of the check by you. By
the end of the next business day following its receipt of the
check and original Subscription Agreement, the Dealer-Manager
shall transmit the check and the original executed
Subscription Agreement to the Managing General Partner.
12. Parties. This Agreement shall inure to the benefit of and be binding on
you, the Dealer-Manager, and any respective successors and assigns.
This Agreement shall also inure to the benefit of the indemnified
parties, their successors and assigns. This Agreement is intended to be
and is for the sole and exclusive benefit of the parties to this
Agreement, including their respective successors and assigns, and the
indemnified parties and their successors and assigns, and for the
benefit of no other person. No other person shall have any legal or
equitable right, remedy or claim under or in respect of this Agreement.
No purchaser of any of the Units from you shall be construed a
successor or assign merely by reason of the purchase.
13. Relationship. You are not authorized to hold yourself out as agent of
the Dealer-Manager, the Managing General Partner, a Partnership or any
other Selling Agent. This Agreement shall not constitute you a partner
of the Managing General Partner, the Dealer-Manager, a Partnership, any
general partner of a Partnership, or any other Selling Agent, nor
render the Managing General
Anthem Securities, Inc. 11
Selling Agent Agreement
Partner, the Dealer-Manager, the Partnerships, any general partner of a
Partnership, or any other Selling Agent, liable for any of your
obligations.
14. Effective Date. This Agreement is made effective between the parties as
of the date accepted by you as indicated by your signature to this
Agreement.
15. Entire Agreement, Waiver.
(a) This Agreement constitutes the entire agreement between the
Dealer-Manager and you, and shall not be amended or modified
in any way except by subsequent agreement executed in writing.
Neither party to this Agreement shall be liable or bound to
the other by any agreement except as specifically set forth in
this Agreement.
(b) The Dealer-Manager and you may waive, but only in writing, any
term, condition, or requirement under this Agreement that is
intended for its benefit. However, any written waiver of any
term or condition of this Agreement shall not operate as a
waiver of any other breach of the term or condition of this
Agreement. Also, any failure to enforce any provision of this
Agreement shall not operate as a waiver of that provision or
any other provision of this Agreement.
16. Notices.
(a) Any communications from you shall be in writing addressed to
the Dealer-Manager at X.X. Xxx 000, Xxxx Xxxxxxxx,
Xxxxxxxxxxxx 00000-0000.
(b) Any notice from the Dealer-Manager to you shall be deemed to
have been duly given if mailed, faxed or telegraphed to you at
your address shown below.
17. Complaints. The Dealer-Manager and you agree as follows:
(a) to notify the other if either receives an investor complaint
in connection with the offer or sale of Units by you;
(b) to cooperate with the other in resolving the complaint; and
(c) to cooperate in any regulatory examination of the other to the
extent it involves this Agreement or the offer or sale of
Units by you.
18. Privacy. The Dealer-Manager and you each acknowledge that certain
information made available to the other under this Agreement may be
deemed nonpublic personal information under the Xxxxx-Xxxxx-Xxxxxx Act,
other federal or state privacy laws (as amended), and the rules and
regulations promulgated thereunder, which are referred to collectively
as the "Privacy Laws." The Dealer-Manager and you agree as follows:
(a) not to disclose or use the information except as required to
carry out each party's respective duties under this Agreement
or as otherwise permitted by law in the ordinary course of
business;
(b) to establish and maintain procedures reasonably designated to
assure the security and privacy of all the information; and
Anthem Securities, Inc. 12
Selling Agent Agreement
(c) to cooperate with the other and provide reasonable assistance
in ensuring compliance with the Privacy Laws to the extent
applicable to either or both the Dealer-Manager and you.
19. Anti-Money Laundering Provision. You represent and warrant to the
Managing General Partner and the Dealer-Manager that you have in place
and will maintain suitable and adequate "know your customer" policies
and procedures and that you shall comply with all applicable laws and
regulations regarding anti-money laundering activity and will provide
such documentation to the Managing General Partner and the
Dealer-Manager on written request.
20. Acceptance. Please confirm your agreement to become a Selling Agent
under the terms and conditions set forth above by signing and returning
the enclosed duplicate copy of this Agreement to us at the address set
forth above.
Sincerely,
, 2003 ANTHEM SECURITIES, INC.
--------------------------------
Date
ATTEST:
By:
--------------------------------- ---------------------------------
(SEAL) Secretary Xxxxxx Xxxxxxxx, Vice President
Anthem Securities, Inc. 13
Selling Agent Agreement
ACCEPTANCE:
We accept your invitation to become a Selling Agent under all the terms
and conditions stated in the above Agreement and confirm that all the statements
set forth in the above Agreement are true and correct. We hereby acknowledge
receipt of the Prospectuses and Sales Literature and a copy of the
Dealer-Manager Agreement referred to above.
, 2003 ,
----------------------------- -------------------------------------
Date a(n) ______________________ corporation,
ATTEST:
By:
---------------------------- ------------------------------------
(SEAL) Secretary _________________________, President
(Address)
------------------------------------------
(Telephone Number)
Your CRD Number is
-----------------------
Your Tax ID Number is
--------------------
Anthem Securities, Inc. 14
Selling Agent Agreement
APPENDIX I TO SELLING AGENT AGREEMENT
In partial consideration for the payment to you, as Selling Agent, by the
Dealer-Manager of up to a .5% reimbursement of your bona fide accountable
marketing expenses as set forth in Section 2(a) of the Selling Agent Agreement,
you warrant, represent, covenant, and agree with the Dealer-Manager that you, as
Selling Agent, shall do the following:
o prominently and promptly announce your participation in the
offering as Selling Agent to your registered representatives,
whether by newsletter, e-mail, mail or otherwise, which
announcement also shall advise your registered representatives
to contact our Regional Marketing Director in whose territory
the registered representative is located (the information
concerning our Regional Marketing Directors has been provided
to you by separate correspondence) with a copy of the
announcement provided concurrently to the Dealer-Manager; and
o provide the Dealer-Manager with the names, telephone numbers,
addresses and e-mail addresses of your registered
representatives, which information shall be kept confidential
by the Dealer-Manager and the Managing General Partner and
shall not be used for any purpose other than the marketing of
the offering as set forth in the Dealer-Manager Agreement and
the Selling Agent Agreement. Further, you, as Selling Agent,
agree that the Dealer-Manager and the Managing General Partner
may directly contact your registered representatives, in
person or otherwise, to:
o inform them of the offering;
o explain the merits and risks of the offering; and
o otherwise assist in your registered representatives'
efforts to solicit and sell Units.
Anthem Securities, Inc. 15
Selling Agent Agreement
